Property Outline

(1) Defining Property, Some Basic Notions About Rights in Things

 Scope of Property Rights

A. “Sticks in the Bundle of Rights”

Property rights consist of the right to exclude, to use and to transfer, collectively referred to as
the “sticks in the bundle of rights.” Property is a relational concept: “property” is comprised of
the rights to (1) exclude, (2) use and (3) transfer in relation to others w/ respect to an asset.
For example, it is more legally accurate to say that, in relation to anyone else in the world, I
have paramount rights to exclude, use, and transfer the car.

1. Right to Exclude
If you own a property, you are entitled to prevent neighbors or strangers from trespassing. If
you own an apple, you can preclude others from eating it. The right to exclude is not
absolute, though (ex. must allow police on property to catch criminal).
2. Right to Transfer
As the owner of property, you have a broad power to transfer your rights either during your
lifetime or at death. In our market economy, it is crucial that owners can transfer their
rights freely. But the law does impose various restrictions on this right (ex. can’t transfer
to avoid creditors).
3. Right to Possess and Use
Traditional English common law generally recognized the right of an owner to use his land in
any way he wished, as long as (a) the use was not a nuisance and (b) no other person
held an interest in the land. Today, however, virtually all land in the U.S. is subject to
statutes, ordinances, and other laws that substantially restrict its use.
Own totality of rights
One can grant easement of their property
One can grant a license
Once can have reversionary interest (interest in lessor at termination of lease)
One thing fee simple owner doesn’t possess-eminent domain (taking with just compensation, no
defense)

B. Real Property
Real property consists of rights in land and anything attached to land (ex. buildings, signs,
fences, trees). It includes certain rights in the land surface, the subsurface (including minerals
and groundwater), and the airspace above the surface.

C. Personal Property
Consists of (1) Chattels & (2) Intangibles.

1. Chattels (Tangible Personalty)

Items of tangible, visible person property—such as jewelry, livestock, airplanes, coins, rings,
cars and books—are called chattels. Today, property rights can exist in almost any
tangible, visible “thing.” Thus almost every moveable thing around you now is a chattel
owned by someone. Exceptions to chattels are body parts and wild animals.
2. Intangibles (Intangible Personalty)
Rights in intangible, invisible “things” are classified as intangible personal property. Stocks,
bonds, patents, trademarks, copyrights, trade secrets, debts, franchises, licenses, and
other contract rights are all examples of intangible personal property. The importance of
intangible personal property has skyrocketed during the 20th century.

D. Property Law and the Accommodation of Public & Private Interests

 Our legal system is routinely called upon to determine property rights in reference to assets.
The importance of considering the public interest in resolving property disputes demonstrates
that property rights are not a naturally occurring event to which government is a stranger, but
rather a socially created proposition in which government participates.

1. Amendments/Statutes
Both the Fifth and Fourteenth Amendments to U.S. Constitution and corresponding
provisions in all the state constitutions provide protection against improper governmental
interference w/ the rights of property owners.

 The Public Interest & Property Rights

A. A Seemingly Simple Case About a Dog

Sentell v. New Orleans & C.R. Co. (DEAD DOG)

A Seemingly Simple Case About a Dog, Right to Possess and Use
Facts: π owned a dog for breeding purposes. While taking the dog for a walk on the streets, the dog ran
onto a railroad track and was hit/killed by an oncoming car. Π proceeded w/ an action to recover the value
of the dog on the basis of being negligently killed by the railroad company.
Issue:
 The case turns upon the constitutionality of a law of the state of Louisiana requiring dogs to be
placed upon the assessment rolls, and limiting any recovery by the owner to the value fixed by
himself for the purpose of taxation.
Rule:
This law will not be deemed unconstitutional and not w/in the police power of the government if
the statute puts a premium upon valuable dogs, by giving them a recognized position, and by
permitting the owner to put his own estimate upon them.
Depends on the state’s laws; state has the police power to define property rights

Policy
 Defining property rights is a local issue that stems from police power.
Notes:
If [dogs] are given in by the owner to the assessor, & placed upon the assessment rolls, they are
entitled to the same legal guaranties as other person property, though in actions for their death or
injury is limited in the amount of his recovery to the value fixed by himself in the last assessment.
While these regulations are more than ordinarily stringent, and might be declared to be
unconstitutional, if applied to domestic animals generally, there is nothing in them of which the
owner of a dog has any legal right to complain. It is purely w/in the discretion of the legislature to
say how far dogs shall be recognized as property.
There is nothing in this law that is not w/in the police power, or of which the π has a right to complain,
and judgment is therefore affirmed.
-Who defines prop rights? Fed or state? STATE. Not fed bc in order to do so fed gov would
need POLICE POWER, they don’t, they have power over their own land. Fed gov gets power
from Constitution, no mention of police power in Constitution. 10th amendment leaves
everything not granted to fed gov to the states.

-If it was a rabbit, what result? Domestic animal=cats, singing birds. Why isn’t a dog a
domestic animal? They don’t have any particular value.

-Rabbit: could be used for food. If it was an Indiana rabbit-not property bc it’s a wild, not
domesticated animal.

-How would one reduce a wild dog to possession? Must reduce it to possession by capturing
it.

-What gives the gov the right to define property rights?

-$2 may have been about a weekly wage, wouldn’t be able to register your dog unless
wealthy(ish)

 Property Rights & Tangible Personalty

A. Bailments—Transfers for a Limited Purpose

A bailment is the transfer of possession, not title, of property for a specific purpose/ specific
time.
1. Elements of a Bailment
A bailment is created when the bailee has actual control of the property and intends to
possess the property. Parties to a bailment may contractually specify their rights &
obligations. In the absence of such a contract, the following rights and obligations govern.
2. Rights & Obligations of Bailee
A bailee has a better right to the property than any third party other than the bailor. Bailees
are required to return the property. Today, bailees generally exercise ordinary care—
they are liable for negligence. Older cases have held the duty of care varies according
to the type of bailment.

i. Bailment Solely For The Benefit of the Bailor

A bailee is only liable for gross negligence (minimal care). Ex. When a finder, finds a lost
article.

ii. Bailment For the Mutual Benefit of the Bailor & Bailee
Bailee held to the ordinary negligence standard. Ex. When a customer test-drives a
dealer’s car.

iii. Bailment Solely For The Benefit of the Bailee

Bailee must exercise the utmost care over property, bailee liable for damage caused by
even slight negligence. Ex. When a neighbor borrows a lawn mower.
B. Rights to Wild Animals
B/c wild animals in nature are considered unowned, they occupy a unique niche in property
law. The principles governing ownership of wild animals were ultimately extended by analogy
to the ownership of other resources, including water, oil, and natural gas.

1. Capture Rule:
 As a general principle, no one owns wild animals in their natural habitat (ferea naturae).
Property rights in wild birds, fish, and other animals are obtained only through physical
possession. The first person to capture or kill a wild animal acquires title to it. This rule
does NOT apply to domesticated or tame animals (domitae naturae). See Pierson.
 Every possible outcome need not be addressed before an EIS statement is filed.
 Lumped together under the general rubric under environment and wild things
 Most these cases represent a review, very basic
Pierson v. Post
Rights to Wild Animals, Capture Rule
Facts: Post (π) was hunting a fox on wasteland. Upon seeing this hunt Pierson (∆), shot and killed the fox
and carried it off. Π contends that he acquired title to the fox b/c he was the first to hunt it. ∆ contends that
he acquired title to the fox b/c he killed the fox. Pierson brought it under his control, thus he acquired title
to the fox.
Rule:
 Pursuit alone vests no property or right in the huntsman.
 The occupancy of beasts ferae naturae is defined to be the actual possession of them.
Policy
 Custom reflects legal realism in property law
Holding: Although ∆’s conduct was impolite & unkind, π did not have rights to the fox.
Notes:
 Pursuit is not enough to won a wild animal; must be reduced to possession, ex. by mortally
wounding it.
 This preserves order in society, otherwise there would be too many hunting lawsuits.
 Dissent: Pursuit without abandonment should be enough (b/c of custom of hunters). A pursuit
through unoccupied land inevitably ending in corporal possession of this unwanted beast makes
anyone who interferes a wrongdoer. (Both would be trespassers and the fox would belong to the
landowner if the land was owned.)
 At what point did possession occur?
 Didn’t turn on who’s land it was found on bc it was “wasteland” therefore it belonged to no one.
 Virginia: known for fox-hunting.
 Dissent; hunters should decide who gets the fox, custom of the sport, unsportsmanlike to grab the
fox at the last minute

2. The Capture Standard:

The Pierson Standard (kills and or captures wild animal and immediately takes possession,
acquires possession) has been relaxed. Hunters own animals caught in their traps as
long as the animal hasn’t escaped.
3. Role of Custom in The Capture Rule:
Customary rules often arise to maximize the well-being of the group creating the custom, to
ensure that individuals do not grab benefits for themselves that impose net losses on the
group as a whole, Custom, in the correct circumstances, can change the rules of
capture. See Ghen.

Ghen v. Rich
Rights to Wild Animals, Capture Rule, Role of Custom in Capture
Facts: Ghen (π) shot and killed a whale, and sank to the bottom of the sea. Ellis later found it washed up
on shore and sold it to Rich (∆). Rich then sold whale for its blubber. There were customs in place so that
whalers would be notified when anyone found their kill (finder supposed to tell whaler, and gets paid a
small fee from blubber profits).
Rule:
 Title to a wild animal is acquired when a hunter apprehends the beast in accordance with
custom.
Policy
 Usage guides courtsi n making practical decisions in unfamiliar commercial fields.
Holding: In this case, title to the whale should be determined under custom but should be done so under
very limited application.
Notes:
 Custom = some practice that most people in a particular area believe in and use for a certain
activity. Goes back to ancient common law. Hard to establish because custom is derogation of
common law.
 Usage = agreement based tradition that most members in a particular business/profession follow.
 A whale does not become property until possession has been established by the taker. It is usage
of the MA whaling industry, recognized for many years, that the taker marks the whale with a
lance, and this is the only possible means of appropriation. If the taker does all that is possible to
do to make the animal his own that is sufficient.
 Usage must be sustained in this case because no one would engage in whaling if the whale could
then be appropriated by any chance finder on the beach. The usage also gives a reasonable fee
for securing or reporting the property once it reaches the breach.
 Notes: the usual remedy: libel: not replevin bc replevin gets you your property back, in this case,
the prop has been destroyed and turned into blubber. So he wants what’s in been made into or
the value. Here it’s an action in libel to get the value.
 Custom v. usage: usage: is for long-time us based on commercial transaction.
 Maine: custom is dead=the rest, custom is growing, particularly in places like HI.

4. Rights and Obligation of Bailor

The bailor is entitled to receive the property back and is obligated by contract to pay any
contractual charges associated w/ the bailment. If the bailment is involuntary, the bailor
can sue 3rd parties for property damage even if the 3rd party has already paid the bailee,
but if the bailment is voluntary, the bailor must look to the bailee, and cannot sue 3 rd
parties who have already paid the bailee.
Bailment
 The delivery of personal property by one person to another in trust for a specific
purpose with a contract, express, or implied that the trust shall be faithfully
executed, and property returned when purpose is accomplished, or kept until
bailor reclaims it; transfer of property for limited purposes.
Example:
o Dry cleaning
 Conversion: Bailee commits an act of dominion
 Breach: If prop is returned damaged, bailee has burden of proving not the result
of his negligence.
Allred v. Brown (AIRPLANE INSURANCE)
Bailments
Facts: π’s leased a plane to ∆ and his business partner. Π gave airplane keys to the ∆, and specifically
said that he “didn’t expect that airplane to go anywhere until there was insurance.” ∆ ended up flying the
airplane before being put on the insurance policy. A substantial amount of damage to the airplane was
sustained in an accident.
Rule:
A bailment is defined as the delivery of personal property by one person to another in trust for a
specific purpose, w/ a contract, express or implied, that the trust shall be faithfully executed,
and the property returned or duly accounted for when the special purpose is accomplished, or
kept until the bailor reclaims it.
Notes:
A lease of personal property is considered a bailment and thus both bailment law and contract law
cover a lease agreement.
In order to establish a bailment, the bailor must actually or constructively deliver the property to the
bailee in such a way as to entitle the bailee to exclude others from possession during the
bailment period, including the owner/bailor.
The relationship between bailor and bailee focuses upon the bailor surrendering possession and
control over his or her property to the bailee.
 Generally, a bailment is implied in law. The rights and duties of the parties are to be determined by
implication from their conduct and the law governing simple bailment generally.
The law imposes a duty upon the bailor only to exercise due care in the protection of the goods
committed to his care.
Law of Contract: bailment.
Bailment for mutual benefit of bailor and bailee (plane exchanged for money)
If one holds property in fee simple like way, one can raise many issues, what is the legal theory?
There is something fundamentally wrong with destroying work of art. But there must be a legal
principle involved.
Bailor: Must intend to give, and Bailee: must intend to take possession of property
Bailor meant bailee to be the bailee for just the coat, not the keys within the coat, never intended to
give/take keys. (INTENT MUST BE PRESENT)
Diff standards of care: ordinary care (can’t be negligent), however if completely unforeseeable (only
person with key, thief breaks in through window)=bailee not liable
Involuntary bailment: stuff in trunk when you park your car in garage

(2) Rights in Things: Gifts & Finds

 Gifts
A gift is a present transfer of property by one person to another w/o any CSN or compensation.
To accomplish a gift of personal property the donor must: (1) intend to make a gift, (2) the
property must be delivered to the donee, and (3) the donee must accept the property.
There are 2 types of gifts: inter vivos & causa mortis.

A. Intent
There must be present intent to transfer the property. If no present interest is created at the
time of delivery, there is only a gratuitous promise to make a gift in the future. An intent to
transfer created sometime in the future is not valid.

B. Delivery
Delivery must be as perfect and complete as the nature of the property and the current
circumstance and conditions will permit. They must relinquish dominion and control over the
property to be considered perfect delivery. There are three types of delivery: (1) actual
physical possession, (2) symbolic delivery, & (3) constructive delivery.

1. Actual Physical Possession

Actual physical possession is the best form of delivery, but that is not always required. When
physical delivery is impractical or impossible, delivery may be accomplished through
symbolic or constructive delivery. Ex.
2. Symbolic Delivery
When actual physical delivery is impossible or impractical, delivery can be accomplished by
delivering some object that is symbolic of possession. The circumstances need to
require that this symbol is enough. Ex. Writing on a piece of paper that you hand over
ownership—works in the case of intangible things, like copyright. (See Hocks).
3. Constructive Delivery
Constructive delivery is the delivery of some object that is the means of obtaining possession
of the property. This is distinguished from symbolic delivery because the object you hand
over gives access to the item you are gifting. This is the weakest form of delivery and
usually upheld only if the donor couldn’t get out of bed or couldn’t get the item. Ex.
Owner giving a key to the drawer that has the 3-carat diamond right. (See Newman)

Newman v. Bost (DYING MAN and BUREAU)

Constructive Delivery
Facts: Intestate gave Newman keys to the bureau and told her to have the keys and everything in the
house. Thus, the furniture in the house passed to Newman through constructive delivery but the life
insurance policy inside the bureau (and anything inside the bureau) did not b/c it was capable of manual
delivery.
Rule:
 Constructive delivery is allowed when the donor had the intention to make the gift and the
things intended to be given are not present, or, where present, are incapable of manual delivery
from their size or weight; but where the articles present and are capable of manual delivery, this
must be had.
Notes:
 If you are capable of delivery and there’s no delivery, then there’s no gift.
 Gift causa mortis: 3 Elements of inter vivos (more strictly applied) + imminent death
 Bost is Van Pelt’s executor.
 Intent: Van pelt expressed his intent to make a gift
 Acceptance: presume acceptance
 Delivery: capable of manually delivering insurance policy to her. Therefore, no delivery.
 If it had been a good gift and had been presented

C. Acceptance
A gift is not complete until it has been accepted by the donee. Delivery triggers a presumption of
a completed gift; presumption can be rebutted by the donee’s rejection of the gift. The
presumption of acceptance is strongest when the gift benefits the donee and virtually nonexistent
when the gift is (rarely) of not benefit. A donee’s delay in rejecting known unwanted gifts also
endangers the donee’s ability to claim that there was no acceptance.

D. Gift Inter Vivos

An inter Vivos gift is a gift of personal property made during a donor’s lifetime, and delivered
to the donee with intention of irrevocably surrendering control over the property. The gift must
be absolute, unconditional and irrevocable.
 HYPO: Prof gives Kaleio pen, and Kaleio sits down. He delivers it. Has intent to give
it. Kaleio says thank you, presumes acceptance either way. Prof didn’t have the right
to transfer pen to Kaleio bc it belonged to someone else (TO). Kaleio returns pen to
TO.
 HYPO: I give it Kaleio, but I want to use it until I die. Condition to use after I die. Law
frowns on conditional gifts, Gifts are supposed to be unconditional.
 Gift inter vivos can be given on death bed, not just gift causa mortis. With respect to
gift causa mortis:
 Van Pelt says the next day: You can have some of the furniture but not the piano.
UNDER INTER VIVOS: COMPLETED GIFT. UNDER CAUSA MORTIS: CAN
REVOKE THE GIFT.
 No such thing as a conditional gift. No such thing as taking back your gift (in inter
vivos). If you survive the illness when you gave a causa mortis, the gift is
automatically revoked.
 HYPO: Prof doesn’t like hospitals, bc he’s having a straightforward operation, Prof
says he wants to give a gift bc he thinks he’s going to die, the gift remains revocable
until he dies. Survives operation. However, contracts pneumonia and dies next day,
some cts: you have to die from you were afraid of dying from, therefore no valid gift.
 Cts don’t like testamentary decisions, otherwise it’s supposed to go into your estate.
 Does Newman get the piano? There is no piano, it was burned. However there was
an insurance policy on it. Who gets the insurance claim? No, the ct says Bost gets it
was in Van Pelt’s hand at his death. He didn’t successfully deliver it to Newman.
 Ct says: Key was sufficient CONSTRUCTIVE DELIVERY: -gave key to bureau, gives
access to item you are gifting (the bureau).
 Callies: This is more like a symbolic delivery than a constructive: Nothing about the
key helps you access the bureau as furniture or move it, therefore it’s symbolic
 Go to constructive or symbolic delivery if CAN’T ACCESS THE GIFT (it’s too far,
heavy)
Hocks v. Jeremiah (bonds in box)
Inter Vivos Gift, Delivery
Facts: Hocks (π) gave Jeremiah (∆) a number of bonds and a diamond and put them all in a safe deposit
box for ∆. Π left 2 notes in the box bequeathing the contents do ∆. Each held a key to the box. After π’s
death, ∆ removed the contents. P sues for replevin and conversion.
Rule:
 Proof of a gift requires a showing that the donor made an actual or symbolic delivery of the
property to the donee by the transfer of possession and absolute dominion over the property,
accompanied by a manifested intention to make a present gift.
 A gift to take effect in the future is ineffective—this is only a gratuitous promise to make a gift in
the future.
 1) INTENT: doesn’t need to be simultaneous, can be at any time 2) DELIVERY:
actual/constructive (key)/symbolic (representation of thing i.e. written) 3) ACCEPTANCE:
presumed bc of value
 Notes:
 Court says ∆ can keep only the initial bonds because π delivered them to her. Everything else
goes to π because π retained ownership and control of the contents of the box, and there is NO
convincing evidence that π parted w/ control and possession of property.
 Reasons for the requirement of delivery for a gift: (1) Protects the donor b/c delivery indicates
the finality of the action. (2) Furnishes objective evidence of the donative intent of the donor. (3)
Furnishes the donee with concrete evidence to substantiate his claim.
 There was a lack of present intent to make the gift. Therefore, the gift was not inter vivos. It was
also unclear whether there was delivery. There were two keys, both decedent and Jeremiah had
access to the safety deposit box.
 Ct awards possession to executor: There was no release of control since in addition to access, he
paid for and used the box, he continued to collect the interest on the bonds, he listed the bonds
as his assets, ∆ understood that her interest would not become possessory until his death, and
decedent’s notes indicate a belief that he owned the contents of the box.
 Bearer bonds: buy a bond to collect interest on it. Whoever held the bond was presumed to be
the owner.
 At the point that he met with sis and handed over first 4 bonds, they become a valid gift and
became hers
 Hocks could have given the bond and retained the interest.
 What ends up as the principle reason why it goes to the estate? The two notes. Testamentary
disposition (you can have this when I die is a future gift), not in a will ***adding when I die,
negates intent
 Callies: case could have gone the other way without the letters.

E. Gift Causa Mortis

A gift made in contemplation of immediately approaching death. The gift is in apprehension of
an approaching death from some existing sickness or peril. Creates a future interest.

1. Requirements:
Death: The donor must die from such sickness or peril w/o having revoked the gift and w/o
intervening recovery.
Delivery: There needs to be actual, constructive, or symbolic delivery of the gift to the donee
or to someone for him.
Intent: The evidence reveals the donor’s present intent to pass title to the gift.
Won’t Happen If: Donor may revoke gift anytime before death & donor must die from
anticipated peril.
When will Gifts Causa Mortis not be effective?
 If Donor revokes give
 If Donor recovers
 Or IF done dies first.
  Finders of Lost Articles
A property owner continues to own his property even after he loses or misplaces it. But lost
property often ends up in the finder’s pocket. The finder’s claim to the property depends on who
the rival claimant is, and what type of found property it is.

A Where was the item found?

 Attached, embedded (Landowner)
 Public land (finder unless mislaid) vs. Private land (landowner)
B Who found it?
 Employee (goes to employer)
 Trespasser (goes to landowner, unless its’s treasure trove)
 Landlord v. Tenant (tenant as occupier favored, unless tenant did not have access to
it)
C. What? The Four Types of Lost Articles
There are four types of found property; (1) Lost, (2) Mislaid, (3) Abandoned, and (4) Treasure
Trove.

1. Lost
Owner unintentionally and involuntarily parts with possession and doesn’t know where it is.
Finder, unless TO or prior possessor claims it. Exceptions: If the finder is a trespasser,
employee, guest, or licensee or if the property is found in a highly private locus or buried,
owner of locus gets possessory rights.
2. Mislaid
Owner intentionally placed property in the spot where it is found and thereafter forgot it (ex.
leaving wallet at the counter). Owner of premises except TO b/c the TO might return to
the locus looking for the item. (See Benjamin)
Distinction: The difference between Mislaid and Lost has an aspect of deliberate and
intentional action. Note whether the property could have gotten to the location without
deliberate/intentional action of the owner.

Benjamin v. Linder Aviation (AIRPLANE $$)

Mislaid Property
Facts: π found money in an airplane wing. He wanted to split the money w/ his supervisor, but the Court
said as mislaid property it belongs to the Bank, which owns the property (the plane) where the money
was found. Π gets no finder’s fee b/c the statute only applies a finder’s fee to lost property.
Rule:
 Owner intentionally placed property in the spot where it is found and thereafter forgot it (ex.
leaving wallet at the counter). Owner of premises except TO b/c the TO might return to the locus
looking for the item. In contrast, property is not considered lost unless the owner parts with it
involuntarily.
 Object Found in a Public Place: The finder of lost property holds it in trust for the benefit of the
true owner, as a bailee. But the finder has rights superior to those of everyone except the true
owner. Although the possessor of goods holds them in trust for the true owner, all states have
statutes of limitations, at the end of which the true owner can no longer recover the good from
the possessor. Usually the SoL does not start to run until the true owner knows or w/
reasonable diligence should know the possessor’s identity.
Notes:
 The currency was mislaid b/c of the location of its discovery (inside the wing of the plane) and
the manner in which it was hidden (probably placed there to hide it).
 Dissent: $ was abandoned (prob drug $) therefore finder’s keepers.
 Callies: Dissent got it right, Unlikely that it was mislaid bc you don’t forget $. Likely that it was
abandoned.
 Finder is acting under scope of employment: then would go Lindner Aviation.
 3. Abandoned
Owner voluntarily and intentionally relinquished ownership with intent to give up both title and
possession. Finder obtains both possession of the title if he exercises control over the
property w/ intent to assert ownership. There must be clear and convincing evidence of
abandonment.
4. Treasure Trove
Consists of coins or currency concealed by the owner. Must have been hidden or concealed
for such a length of time that the owner is probably dead or undiscoverable. Belongs to
the finder as against all but the true owner.

B. Law of Finds
“Finders, Keepers.” Abandonment of the property must be proven by clear and convincing
evidence. Possession ism ore readily found under law of finds.
 Aim: primary concern is title
 Assumption- property was never owned or abandoned
 Policy: encourage finders to act secretly and hide recoveries in order to avoid claims
of prior owners.

C. Law of Salvage
Modern majority rule. Original owners still retain their ownership interests. Salvors are entitled
to a hefty salvage award that often exceeds the cost or value of services rendered. If no
owner comes forward, the salvor gets everything. (See Columbus-America Discovery
Group)
 Aim-preservation of ocean and wateways
 Assumption-someone owns it, it has just been lost at sea, involuntarily taken out of
owners possession
 Policy- don’t encourage secrecy.

Columbus-America Discovery Group v. Atlantic Mutual Insurance Company (SHIPWRECK)

Abandoned Property, Law of Finds, Maritime Law of Salvage
Facts: Gold was deposited miles off the coast of South Carolina when a ship sank in 1857. The
whereabouts of the wreck remained unknown until 1988, when it was located by the πs. πs moved to
federal district court to have itself declared the owner of the treasure. ∆s are the ship insurers who had
originally underwritten the gold for its ocean voyage and had to pay off over a million dollars in claims
upon the disaster.
Rule:
 Abandonment is said to be a voluntary act, which must be proved by a clear and unmistakable
affirmative act to indicate a purpose to repudiate ownership. The proof that need be shown must
be strong, such as the owner’s express declaration abandoning title.
Notes:
 Under the maritime law of salvage, the original owners still retain their ownership interests in
such property, although the salvors are entitled to a very liberal salvage award. (applied in this
case)-TO has the best claim.
 The common law of finds, which expresses “the ancient and honorable principle of “finders,
keepers.” Traditionally, the law of finds was applied only to maritime property, which had never
been owned by anybody, such as ambergris, whales, and fish. A relatively recent trend in the law,
though, has seen the law of finds applied to long lost and abandoned shipwrecks.
 Courts in admiralty favor applying salvage law rather than the law of finds.
 The primary concern of the law of finds is title. The law of finds defines the circumstances
under which a party may be said to have acquired title to ownerless property. Its application
assumes that the property involved either was never owned or was abandoned. (here, the lower
ct claims it was abandoned).
 The primary concern of salvage law is the preservation of property on oceans and waterways.
Salvage law specifies the circumstances under which a party may be said to have acquired, not
 title, but the right to take possession of property for the purpose of saving it from destruction,
damage, or loss, and to retain it until proper compensation has been paid.
 In the treasure salvage cases, often involving wrecks hundreds of years old, the inference of
abandonment may arise from lapse of time and nonuse of the property, or there may even be an
express disclaimer of ownership. This calls for the law of finds. By contrast, parties who intend to
assert a claim of ownership may be identified. In such a case the law of salvage applies.
 To what chattels does the case apply?
 Law of salvage v. Law of finds
 Columbus-America is after all the gold, other parties are after some of it, insurers after all of it.
 Ct is unwilling to apply the law of finds. Bc
 Lost- the TO can still claim it.
 P’s argument: destroyed documents of proof, gave up search, made no attempt as technology
improved.
 However ct didn’t accept that. How would you show abandonment? Formal concession: “we
abandon”
 ***Finder gets 90% as salvager
 Law of salvage doesn’t apply to personal property of individuals on the ship. Not covered by the
insurers. Nobody claimed.
 Cts don’t decided issues before it. If not part of cert petition, S Ct. won’t decide it. Why? Judicial
economy, no briefs, no argument
 Songbird case: Statute of Limitations: length of time for AP

(3) Nuisance

A nuisance is an unreasonable inference w/ the use or enjoyment of land. Sic utere tuo ut alienum non
laedas (one must use one’s property so as not to injure another’s property) is the root of nuisance. A
person may not use his own land in an unreasonable manner that substantially lessens another person’s
use and enjoyment of his land.

 Private Nuisance
A private nuisance involves an invasion of interest in the enjoyment of land. Nuisance involves a
special type of harm—interference with the interest of an owner, tenant, or other land occupant in
the use and enjoyment of land. Next, nuisance involves a special type of conduct—a
nontrespassory invasion. A physical entry onto land owned or occupied by another is a trespass,
not a nuisance. A nuisance involves conduct other than physical entry.

A. Types of Private Nuisances

Private nuisances are usually divided into two types: (1) nuisance per se, and (2) nuisance
per accidens.

1. Nuisance Per Se
The nuisance per se is an act or condition that is always considered to be a nuisance,
regardless of the surrounding circumstances; most commonly, this is some type of
activity that is prohibited by law.
2. Nuisance Per Accidens
The nuisance per accidens is a nuisance only because of the surrounding circumstances,
such as its location and manner of operation. This type of nuisance involves otherwise
lawful conduct that is wrongful b/c of the particular circumstances of the case. (Ex.
halfway houses & soup kitchens might be nuisances in residential areas, but are not
nuisances per se.)

B. Elements
Five elements are required to establish liability for a private nuisance. The π must prove that
the ∆’s conduct produced an (1) intentional, (2) nontrespassory, (3) unreasonable, and (4)
substantial interference (5) w/ the use and enjoyment of the π’s land.
 1. Intentional Requirement
A person’s harmful conduct is deemed “intentional” if either (a) he acts for the purpose of
causing the harm or (b) he knows that the harm is resulting or is substantially certain to
result from his conduct.
2. Unreasonable Conduct
In a typical nuisance case, the other nuisance elements are usually easily proven; thus, the
outcome usually hinges on whether the interference was unreasonable.
i. Traditional Approach
Many states still follow the traditional, pre-Restatement approach to unreasonableness.
Some equate unreasonableness w/ serious injury to the π. Others employ a multi-
factor test to assess unreasonableness, although the factors vary from state to state.
ii. Restatement Approach
Under the RS approach, an intentional interference is deemed unreasonable if the
gravity of the harm outweighs the utility of the actor’s conduct. In order to apply
this standard, a court must compare (a) the utility of the ∆’s conduct with (b) the
“gravity of the harm” that this conduct causes to the π. The RS directs one to look at:

a. The character of the harm;

b. The social value of the use invaded; &
c. The suitability of that use to the character of the area.

3. Substantial Interference
The interference w/ the π’s use and enjoyment must be substantial. Thus if π’s damage
consists of his being inconvenienced or subjected to unpleasant smells, noises, etc., this
will be “substantial” damage only if a person of normal sensitivity would be seriously
bothered. Slight inconveniences or petty annoyances are insufficient to establish
nuisance liability.
4. Use & Enjoyment of Land
Nuisance liability arises only from interference w/ the interest of an owner, tenant, or other
and occupant in the use and enjoyment of the land. This element is clearly met when the
∆’s conduct causes physical injury to the land itself or to tangible personal property
located on the land. The same is true when the offending conduct causes death, bodily
injury, sickness, or substantial discomfort to persons who are physically present on the
land.

C. Defenses to Private Nuisance

There is a broad range of defenses available to combating private nuisances. A π cannot
recover if he consented to the nuisance. If the ∆ has continued the nuisance for a sufficiently
long period to acquire a prescriptive easement for the conduct at issue, this is a complete
defense. The statute of limitations may also bar the π’s claim.

1. “Coming to the Nuisance”

A π who moved into the region after the offending conduct began was not entitled to recover;
the law protected the first-in-time use. Today, however, almost all courts reject this
defense b/c it effectively allows first-in-time residents to stifle new development in the
community. Instead a number of courts consider the π’s “coming to the nuisance” as one
factor in determining reasonableness.

D. Remedies for Nuisance

Nuisance presents a problem of conflicting uses—each user’s desired use prevents the other
use from occurring. Each use produces externalities—costs that are not imposed on
somebody other than the person producing them. There are four possible outcomes to any
nuisance suit.

1. No Nuisance: Continue the Activity

 In this outcome, the attacked use is determined not to be a nuisance and so continues
without restraint

2. Nuisance: Enjoin & Abate the Activity

In this outcome, the attacked use is found to be a nuisance and its continuation is enjoined.

3. Nuisance: Pay Damages & Continue the Activity

In this outcome, the attacked use is found to be a nuisance but is permitted to continue so
long as the nuisance maker pays damages to the π landowner. Courts are likely to
employ this remedy when they think that the nuisance use is more valuable but believe
that the transaction costs of shifting the right to the nuisance user would prove to be
insuperable.

4. No Nuisance: Enjoin the Activity But Award Damages to the Enjoined Actor
In this outcome, whether or not the attacked use is found to be a nuisance it is enjoined if the
complaining landowner pays damages to compensate the attacked uses for the
discontinuance of the use. Courts employ this remedy when they think that the π’s use is
more valuable, but it is not clear that the attacked use is a nuisance.

Bove v. Donner-Hanna Coke Co. (COKE OVEN)

Nuisance
Facts: π operates a grocery store, lives in the rear, and rents out the 2 nd floor. ∆ operates a large coke
(coal byproduct used to produce iron and steel) oven across the street that must be continuous out of
necessity. Steam, dirt, dust, gas, and odor enter π’s house and store. Π claims that ∆’s use deprives her
of the full enjoyment of her home, invades her property rights, and constitutes a private nuisance.
Rule:
As a general rule, an owner is at liberty to use his property as he sees fit, w/o objection or
interference from his neighbor, provided such use does not violate an ordinance or statute.
However, an owner will not be permitted to make an unreasonable use of his premises to the
material annoyance of his neighbor, if the latter’s enjoyment or life or property is materially
lessened thereby.
Whether or not a particular use constitutes a nuisance depends upon whether such use is
reasonable under the circumstances.
Notes:
You can do whatever you want w/ your property as long as it doesn’t adversely affect your neighbor.
However, the court here concluded that ∆’s use of the coke plant did not cause a private nuisance
against π. In 1932, it was not a good time to suggest the court that a company that produces
something the country needed is a nuisance. Moreover, at that time in NY, the only remedy for
nuisance was an injunction to shut the nuisance down. Policy reasons: essential to prosperity of
the nation, employed many people
A person who chooses to live in an urban environment must expect to experience some of the
resulting inconveniences, and so not every annoyance connected w/ business will be enjoined.
The inconvenience must be certain and substantial, and must interfere with the physical comfort of
the ordinarily reasonable person. Although π moved in years before ∆, the region was never a
residential district. Π was aware of the constant contamination by dirt, gas, and odor and cannot
say that her health or enjoyment of her home was interfered with solely by ∆’s plant.
No one has the right to act in a way that’s nuisance-like
8 factories are within a 7 mile radius. Heavy import/export area. Near the river. Should have known
that she was coming to an industrial area.
Court of Equity: same ct decides both, proceeding under law or equity. Seeking an injunction AN
EQUITABLE REMEDY (4 equitable remedies: injunction, mandamus, prohibition, habeas
corpus).
Zoning: if classified as industrial when she moved in-she should have known it was industrial and not
moved in. In this case, wasn’t zoned at all.
 Why would bringing nuisance against City of Buffalo for H power plant would not work? Nuisance is in
tort law, can’t bring tort action against gov without gov’s consent.
What kind of a claim would you bring to avoid trying to get permission to sue the state in tort?

 Public Nuisance
A public nuisance affects rights held in common by everybody. A pure public nuisance is rare;
usually, a public nuisance is also a private nuisance. The substantive test for public nuisance is
the same as for a private nuisance. A private citizen may enforce a public nuisance if he has
suffered a special injury—some particularized & personalized injury.

A. General Rights of Public

A private nuisance merely interferes w/ the rights of a particular person or a small number of
persons in the use and enjoyment of their land. In contrast, a public nuisance doctrine
involves conduct that interferes w/ the rights of the public in general, in situations that go far
beyond the use and enjoyment of land.

B. Factors That Bear On Unreasonableness

Virtually any intentional conduct that unreasonably interferes w/ the public health, safety,
welfare, or morals may constitute public nuisance. Factors that bear on unreasonableness
include:
(1) Whether the conduct “involves a significant interference” w/ the public health, safety,
peace, comfort, or convenience,
(2) Whether the conduct is prohibited by statute, ordinance, or regulation; and
(3) Whether the conduct is continuing or permanent and has “significant effect upon the
public right.”

C. Typical Plaintiff
The typical π in a public nuisance action is a city or other governmental entity that brings suit
on behalf of the general public and seeks damages, an injunction, or an abatement order. A
private party may sue only if “special injury” can be demonstrated.

Spur Industries Inc. v. Del E. Webb. Development Company (Feedlot moved)

Public Nuisance
Facts: Spur (π) owned a cattle feedlot well outside Phoenix for years, but when Webb’s residential
development grew to that area, Webb wanted the feedlot removed. Π (developer of residential subdivision
in close proximity to ∆’s operations) sought injunction to stop ∆ from operating its feedlot b/c it was a
public nuisance.
Rule:
An otherwise lawful activity can become a nuisance b/c others have entered the area of activity,
and thus be enjoyed; if the party requesting the injunction, however, is the one that creates the
need for the injunction, that party can be required to provide compensation for the cost of
moving or shutting down the activity.
Where the injury is slight, the remedy for minor inconvenience lies in an action for damages rather
that in one for an injunction.
Injunction is appropriate where public nuisance is danger to public health (flies).
Notes:
A suit to enjoin a nuisance sounds in equity and the courts have long recognized a special
responsibility to the public when acting as a court of equity. Having brought people to the
nuisance to the foreseeable detriment of Spur, Webb must indemnify Spur for a reasonable
amount of the cost of moving or shutting down.
The granting or withholding of relief may properly be dependent upon considerations of public
interest.
Courts of equity are concerned with protecting the operator of a lawfully (albeit noxious) business
from the result of a knowing and willful encroachment by others near his business.
Coming to the nuisance—Landowner may not have relief if he knowingly came into a neighborhood
reserved for industrial or agricultural endeavors and has been damaged thereby.
 Del Webb is entitled to relief prayers for (a permanent injunction) b/c of the damage to the people
who have been encouraged to purchase homes in Sun City.
Del Webb-developer. Purchased the London Bridge, not the Tower Bridge.
Feedlot: manure, smell, flies= danger to public health.
Nuisance? Yes. Subject to “abatement”-must stop
Remedy: Ct must protect class of persons (people who moved into subdivision).
Callies: the previous case, Bove didn’t come to the nuisance. Here, Webb did.
Land use is not a privilege, it’s a right. We have not yet communalized land. Ownership and use of
land is not a public utility. It is gov that has the burden to show that regulations of waste problem
are legit. If a regulation goes to far, it’s the equivalent of taking property (5 th amendment-no taking
without just compensation). Rights of owner of fee simple property, and what happens when
those rights are infringed.
Issue of GMO, would it be defensible to bring a nuisance claim against commercial entities that grow
or use seeds that are GMO? Maybe not bc it’s not affecting others’ use of property. Must affect
another’s crop.
Where does the power to zone come from? Which level of gov exercises that power and under what
authority?

Reasonable Use by the Owner – Support & the Right to Exclude

 The Right to Support

Every landowner has the right to continued physical support of his land by abutting land. The
natural topography may be altered only insofar as a neighbor’s land is left w/ sufficient support.
There are two types of support: (1) lateral & (2) subjacent support.

A. Lateral Support
The right to support from adjoining soil is called the right of lateral support (like support
supplied from a bookend to a row of books).
1. Strict Liability (For Land)
An adjacent landowner is strictly liable for acts of commission and omission on his part that
result in the withdrawal of lateral support to his neighbor’s property. The strict liability is
limited to land in its natural state. A adjacent landowner must laterally support the upper
property to the same extent that the soil would naturally support it.
2. Structures
If the owner has constructed a building, and the soil under the building subsides in part due to
the adjacent owner’s acts, but also in part b/c of the weight of the building itself, the
adjacent owner is not liable unless he has been negligent. (See Noone)
B. Exceptions to Lateral Support Liability
 Act of God; or
 The weight of the property’s owner structure caused the land to commpales

Noone v. Price (RETAINING WALL)

The Right to Support
Facts: Former owner of ∆’s house built a wall on ∆’s property to support π’s land. Π’s bought the upper
property but discovered that their house was starting to crack and slide down the hill. Π’s complained to ∆
that the problem was deterioration in ∆’s retaining wall. ∆ did nothing to repair the wall and π’s repaired
the damaged to their house.
Rule:
 As a general rule, a landowner is entitled to lateral support in the adjacent land for his soil. An
adjacent landowner is therefore strictly liable for acts and omissions that result in the
withdrawal of lateral support to his neighbor’s property. This strict liability is limited to land in
its natural state; there is no obligation to support the added weight of buildings that land cannot
naturally support.
Notes:
  If land in its natural state would be capable of supporting the weight of a building, and such
building is damaged b/c of the subsidence of the land itself, then the owner can recover damages
for both injury to the land and injury to the building. If the weight of the house caused the land to
subside and the land would not have subsided w/o the weight of the house, then π’s cannot
recover.
 ∆’s wall was built when there were no buildings on π’s land, therefore ∆ only had the obligation to
maintain the wall to support π’s land in its natural condition. The case is remanded to determine if
the weight of π’s house caused the insufficiency of support (if yes, no recovery; if no and the
deterioration of the wall caused it, π’s can recover).
 If a neighbor who has no obligation to do so is actually supporting structures, then the neighbor
who withdraws support must do so in a non-negligent way.
 Unreasonableness may lead to negligence.
 Many cases of lateral and subjacent support in HI.
 Owner w/ respect to neighbor has absolute duty to provide support (or responsible withdrawal of
support).
 Without a view covenant-perfectly legal to build 31/2 story house.
 Promises run with the property- buy the property, must repair the wall
 Possible for Noone to surrender his CL right: give up right to sue when buying uphill property
 Hypo: Price: I’ve done everything I can, strengthened wall, doubled-capacity to hold soil back, but
it’s still falling. Good defense? Yes
 Absolute liability is over bc weight of house is relevant. Only strictly liable for land in its natural
state.
 Subjacent support-mining water: CL cannot withdraw and cause subsidence of neighbor’s land
(happens in Houston)
 Mining: hyrdolic fracturing (fracking) –mining natural gas, by forcing water mixed with chemicals
into shale rock formations, forcing open and releasing natural gas.
 Geothermal exploration: fracking law should apply to geothermal, draws subjacent support out of
the earth, may cause tremors.

B. Subjacent Support
The right to subjacent support arises only where sub-surface rights (i.e., mineral rights) are
severed from the surface rights. When such a severance has taken place, the owner of the
surface interest has the right not to have the surface subside or otherwise be damaged by the
carrying out of the mining.
1. Structures Existing
The surface owner has absolute right to support, not only of the unimproved land, but also
support of all structures existing on the date when the severance took place.

 The Right to Exclude

It is generally accepted that the essence of private property is the right of the owner to exclude
others—the right to exclusive possession. Courts have traditionally granted great protection to
this right. The reason for this type of protection is that if A wants to enter B’s land, B should
bargain w/ A for this right and not seize it. However, the right to exclude has some limitations
when important rights of others become involved.

A. Limitations on the Right to Exclude

The right to exclude is not absolute. There are many cases, which hold that necessity, & an
inability to control movements inaugurated in the proper exercise of a strict right, will justify
entries upon land and interferences w/ personal property that would otherwise have been
trespasses.
1. 1st Amendment and Public Access (Pruneyard)
2. Custom (Thornton)
3. Public Trust (Ill Central).

Kaiser Aetna v. United States

The Right to Exclude
Facts: Bishop Estate leased 6000 acres of private property (including Kuapa Pond) to Kaiser Aetna to
develop Hawai’i Kai. Kaiser dredged a channel connecting Kuapa Pond to Maunalua Bay and the Pacific
Ocean to allow boats in and out of Hawai’i Kai Marina. The Army Corps then claimed that Kaiser could
not deny the public access to the pond b/c it became a navigable water of the U.S. as a result of the
improvements. Can’t commit a taking of right to exclude without just compensation. Violates 5 th and 14th
amendment.
Rule:
 The right to exclude is a fundamental property right that the government can’t “take” without
making just compensation.
Notes:
 Navigational servitude doesn’t create a blanket exception to the Takings Clause (5 th amendment)
whenever Congress exercises its Commerce Clause authority to promote navigation.
 Supreme Court reversed: Kuapa Pond is subject to regulation by the Army Corps of Engineers
but is not subject to public right of access. If the Government wishes to take the pond &
required Kaiser to allow free public access, it may not do so w/o invoking eminent domain
power (5th amendment) and paying just compensation while Kaiser has an agreement w/ their
lessees on the marina to pay an annual $72 fee.
 Prior to improvement, Kuapa Pond was incapable of being used as a continuous highway for the
purpose of navigation in interstate commerce, thus it is not a “great navigable stream” recognized
as being “incapable of private ownership.” Also, Kuapa Pond has always been considered private
property under Hawaiian land.
 The right to exclude falls w/in the category of interest that the Government cannot take w/o
compensation. This is not a case in which the Government is exercising its regulatory power in a
manner that will cause an insubstantial devaluation of Kaiser’s private property; rather, the
imposition of the navigational servitude here will result in an actual physical invasion of the
privately owned marina. If the Government physically invades only an easement, it must
nonetheless pay just compensation.
 The right to exclude exists independent of the extent of the invasion—that no harm was done to
the property is not a defense in an action for trespass.
 Temporary governmental invasions of private property do not constitute compensable takings.
 The right to exclude extends to those who own title to the property & to those who are in lawful
possession of it.
 Kaiser Aetna is suing US for committing a taking
 Missions of KSBE trust: make $ for the trust.
 Under Hawaii law, a fishpond is PRIVATE PROPERTY.
 Connecting the pond to the ocean=navigational servitude.
 Commerce Clause-
 Canon: fed gov has no police power, except over its own property, stretches Commerce Clause


B. The First Amendment & Public Access

Pruneyard Shopping Center v. Robins

First Amendment & Public Access
Facts: ∆’s, high school students, were distributing leaflets in a main area of π’s shopping center. Π’s
security guards threw the kids out. California Superior Court found for π. California Court of Appeals
affirmed. California Supreme Court reversed. S Ct. affirmed. Kids win!
Rule:
 A shopping center may use time, place, and manner regulations to restrict expressive activity
and minimize interference w/ its commercial functions.
 Property rights are determined by the states, and those rights are protected as long as they
don’t violate the 5th Amendment and the 14th Amendment. The right to exclude is not absolute.
Notes:
  This case is a failure of showing anything compensable under the 5th Amendment. A property
owner’s ability to conduct business is probably not affected by some students w/ a table in the
corner of the courtyard.
 The Court says you can’t decide who you want and who you don’t want on your property once
you open it to the public.
 The requirement that Pruneyard permit Appellees to exercise state protected rights of free
expression and petition on shopping center property does not amount to an unconstitutional
infringement of property rights under the Takings Clause (Takings Clause-Gov can’t take land
without just compensation). Pruneyard has failed to demonstrate that the right to exclude others
is so essential to the use or economic value of their property that state authorized limitation of it
amounts to a taking.
 The shopping center is permitted to impose reasonable restrictions (time, place, manner) on
expressive activity.
 This would be a different situation if the protest was taking place in a small convenience store…
the protest would have to overcome the argument of economic interest.
 Can’t pick and choose if you are inviting everybody in unless it affects your economic interest
extremely adversely.
 Generally, the 1st Amendment always wins over other rights (freedom of speech).
(4) Custom & The Public Trust Doctrine

 Public Prescriptive Easements

Some JDXs permit the public at large to acquire prescriptive easements in private lands, so long
as all the elements of prescription are satisfied. Other jurisdictions achieve the same result
through implied decision, custom, or the public trust doctrine.

A. Prescriptive Easements in Favor of the General Public

The general rule is that the public at large can obtain a prescriptive easement in private
property so long as the elements of prescriptive use are established. However, most courts
apply a rebuttable presumption that public use is permissive and the use must be sufficiently
widespread to be truly public. Use by the neighborhood alone may not be sufficiently public to
create a public prescriptive easement.
B. Custom
Beach front property owners own the “dry sand” portion of the beach, b/c their title usually
extends to the mean high-tide mark. Ancient common law held that the public acquired a
customary right to use the dry sand portion of a beach if such public use had gone on so long
that “the memory of man runneth not to the contrary.” To establish this customary right, the
public must prove immemorial usage w/o interruption that is peaceable, reasonable,
certain, and consistent w/ other customs. (See State of Oregon, ex rel. Thornton).
Blackstonian custom: usage by common consent and uniform practice that has become the
law of the place, or of the subject matter to which it relates.

 Elements of Custom
 Ancient
 Without interruption
 Use must be peaceable and free from dispute
 Reasonableness
 Certainty
 Obligatory- known by land owner
 Not be repugnant
Custom v. Prescription/Prescriptive Easements

 Custom Preffer)
 o Broadly applicable blanket rule
o Unique lands with clear history of customary use
 Prescription
o Prescriptive rights are tract by tract
o Prescriptive rights are personal

State of Oregon, ex rel. Thornton v. Hay

Custom As a Limitation on the Right to Exclude
Facts: Hays own a tourist facility at Cannon Beach. Over the years, the public had acquired a prescriptive
easement for recreational purposes to go upon and enjoy the dry sand area. The Hays wished to enclose
the dry sand area w/ a fence. They appeal a decision which enjoins them from constructing fences in the
dry sand area.
Rule:
 Custom: Such a usage as by common consent and uniform practice has become the law of the
place, or of the subject matter to which it relates, and justifies the limit to a private property
owner’s right to exclude.
Notes:
 Customary rights can limit the right to exclude.
 Held: the state has an equitable right to protect the public’s rights to the dry sand area by causing
the removal of fences and other obstacles. The Hays cannot exclude the public b/c the public has
established a right by custom to do over the dry sand area.
 While a statute cannot create public rights at the expense of a private landowner, the statute can
and does express legislative approval of the common law doctrine of prescription where the facts
justify its land for public recreational use. Therefore, Oregon law does not preclude the creation of
prescriptive easements in beach land for public recreational use. However, prescription applies
only to a specific tract of land while custom covers a larger region, and ocean lands in the whole
state ought to be treated uniformly.
 Custom is applied in this case b/c the land here has been used by the public as recreational land.
This has been recorded an unbroken custom running back in time as long as the land has been
inhabited.
 The public has freely exercised the right to use the dry sand area as long as there has been an
institutionalized system of land tenure in Oregon. The custom is so notorious that notice of the
custom on the part of the persons buying land along the shore must be presumed.
 Requirements of Custom: (1) ancient, (2) exercised w/o interruption, (3) peaceable and free from
dispute, (4) reasonableness, (5) certainty, (6) obligatory (not the option of each landowner to
recognize or not recognize the public’s rights to go upon the dry sand area for recreational
purposes), (7) not repugnant or inconsistent w/ other law.
 What does this do to the right to exclude?
 Note: Lucas v. North Carolina-new and renewed importance? Why are we interested beyond the
fact that there may be exceptions?
 Hays want to fence it off for the exclusive use for their own guests.
 State has 2 theories: Prescriptive easement- Ct chooses not to apply prescriptive easement bc
it’s diff from person to person, the public may never be able to establish a prescriptive right, hard
to sue the public for trespass.
 Neither side argued customary law. Dragged out of the blue.
 Blackstone commentaries: founding source CL, adopted by states. His principle’s were supposed
to limit customary law.
 PASH: provide for access/gathering resources. Not based on Blackstone, but Constitutional
provision.
 Custom must be: 1) ancient 2) not inconsistent with other law
 Ct is really reaching to justify non-Blackstone customary base
 Extends to everyone in the state.
 Customary law: background principle of a state’s law of property, an exception, a defense for gov
for regulation which is usually unconstitutional, the other is the public trust doctrine.
 C. Public Trust Doctrine
Some states approach the issue of public beach access by invoking the public trust doctrine,
under which the water and beach front below the mean high-tide mark is held by the state in
public trust, to enable the public to use these tidal waters and lands (submerged or
submersible lands-incldues tidelands, and by implication, coastlines, harbors, and navigable
bodies of water. for swimming, boating, fishing, and other common pursuits. This approach
can be problematic b/c access to such public lands is often only through privately owned
land. State owns all of the wet sand areas. PUBLIC TRUST CAN NEVER BE TERMINATED
1. Applicable Land
Submerged & submersible lands are preserved for public use in navigation, fishing, and
recreation.
2. The State
The State, as trustee for the people, bears the responsibility of preserving & protecting the
right of the public use of the waters for those purposes.
3. Transferred for Private Ownership?
If public trust land is transferred to private ownership, the sovereign has a right to reclaim the
property later w/o paying compensation. The State can never transfer public trust land in
fee simple absolute.
4. Your Private Property
If your private property extends into a public trust area, you are allowed some limited private
uses on the public trust land so long as you don’t use it in a manner that interferes w/ the
jus publicum.
5. Hawai’i?
In Hawai’i, the state owns tidal lands: the wet sand area is not only impressed by the public
trust, it is owned and held in fee simple by the state.

Illinois Central Railroad Company v. Illinois

The Public Trust Doctrine
Facts: The Illinois legislature in attempting to have the Chicago Harbor developed, accidentally gave title
to the harbor to the Illinois Railroad. The State (through the legislature) reclaimed the Chicago Harbor.
The Railroad petitioned the Supreme Court. S Ct ruled in favor of State holding that the Harbor had been
held in trust by the State for the citizens of Illinois and therefore had no authority to transfer title to a
private entity.
Rule:
 Not every transfer of an interest in public trust to a party is invalid—“parcels used in the
improvement of the interest thus held, or when parcels can be disposed of without detriment to
the public interest in the lands and waters remaining.”
Notes:
 The state cannot convey interest in lands that are in the Public Trust. State can’t transfer interest
in fee simple absolute, but state can transfer interest as long as state does not transfer interest
that would interfere with jus publicum.
 State could transfer many things to a private entity. Not every parcel of land owned by the
government is subject to the public trust.
 Justifications for leasing lands held in public trust: (1) Balancing public trust against economic
gain as long as it doesn’t interfere with public use; (2) Cannot just declare expansion of public
trust. Would have to exercise eminent domain. Would have to argue that the land had always
been a part of the public trust.
 Sold the submersible lands to Railroad Company in fee simple absolute.
 Can gov ever transfer fee simple to private party? No, Illinois can’t transfer land in fee simple to
private party
 Permits a private entity to use land for private purpose (fishing, fowling)-origin of public trust
doctrine.-incapable of private ownership but not incapable of private use, as long as doesn’t
interfere with jus publicum.
  Never meant to be a doctrine for conservation, only a reallocation of rights where valuable
resources were involved.
 Transfer of land was void from the beginning.
 Not litigated bc: private prop owners argue that minerals under my land belong to me. But now
fracking: litigation.

Matthews v. Bay Head Improvement Association

The Public Trust Doctrine
Facts: The Association controls and supervises its beach property during the summer and stations police
to ensure that only Association members or their guests enter the beach area. The Associate charges
admission. It employs police that turn away others. Matthews wanted access to the beach. The NJ S. Ct
held that the public has a right to gain access to a public trust resource (in order to enjoy the public trust
resource) through and to use the dry sand area.
Rule:
 Where a municipal beach is dedicated to public use, the public trust doctrine dictates that the
beach and the ocean waters must be open to all on equal terms and w/o preference and that any
contrary state or municipal action is impermissible.
 Reasonable access to public trust lands may be automatically included in the concept of public
trust.
Notes:
 The public trust doctrine acknowledges that the ownership, dominion, and sovereignty over land
flowed by tidal waters, which extend to the mean high water water mark, is vested in the State in
trust for the people. The public’s right to use the tidal lands and water encompasses navigation,
fishing, and recreational uses, including bathing, swimming, and other shore activities.
 In order to exercise the rights guaranteed by the public trust doctrine, the public must have
access.
 Limitations: The public does not have an unrestricted right to cross over all property bordering on
the public trust area, but the public interest is satisfied so long as there is reasonable access to
the sea.
 Private landowners may not prevent the public from exercising its rights under the public trust
doctrine.
 This is an outlier case, other cases don’t go so far as to allow full access and recreational use.
 Trying to get to water and wet sand by crossing dry sand. Issue: crossing that dry sand area that
is owned by the Association
 Does access come with the resource? The NJ case and NH –only state S Ct cases that deal with
this
 How broad is that use that the Ct is establishing? Reasonable access to foreshore as well as
recreational area on dry sand =even if it is technically owned.
 CEDED LANDS ARE HELD IN TRUST: should the land go to OHA or not? Whatever gov has
ceded land which are lands ceded to the US gov at the time of annexation. The ceded lands act-
give it back, gave back 99% to State of Hawaii, not Hawaiians. In either way, its held in trust by
people of Hawaii.


Opinion of the Justices

Public Use of Coastal Beaches
Facts: NH Legislature wants to grant an easement across the dry sand area. The public trust in tidal lands
does not infringe upon existing private property rights.
Rule:
 Statutes cannot give the public the right to cross private property to access a public right
access w/o just compensation, so declaring a public easement over a private dry sand area is a
taking which requires just compensation (Not true in Hawai’i).
Notes:
  The legislature can declare a public easement for access to a public trust resource, but you have
to exercise the equivalent of eminent domain and pay those private property owners
compensation b/c it interferes w/ their fundamental right to exclude.
 Constitutionality is questionable for the legislature to declare a public easement across private
property.
 HYPO: people want trailheads to be owned by the State. What if it’s surrounded by gated private
community.
 Waialae Iki and Hawaii Loa ridge: developers negotiated that people can pass onto land through
gate
 Could the state declare easement over vacant private land? Does the development of that prop
snuff out a right of the public? If you were a trespasser when it was undeveloped, you’re a
trespasser now. Does access to the public trust resource involve the resource? Is a trailhead an
access to the public trust?
(5) NATIVE HAWAIIAN PROPERTY RIGHTS
Aloha aina- love the land. The traditional land system evolved to provide stewardship to provide natural
resources for the land. IT also invludes mandafement of the ocean resoruces. This pattern became
institutionalized as managing the land. And all of the resoruces were available to the people who lived
in it.

Paulet incident was a wakeup call to the King to give some kind of land ownership. If the land was not
divided, the land could be taken over by just overturning the king.

In establishing land ownership/private property:

 They reserved traditional customray rights of the makainana to the land
 Kam 1 was founder of the Kingdom and had all the land, but it was not his private property.
NATIVE HAWAIIAN RIGHTS

Public Access Shoreline Hawaii (PASH) v. Hawaiian County planning commission (HPC)
Facts:
Nansay was planning to build big resort and PASH opposed it saying they had rights to land. HPC held a hearing and found that
PASH had not presented evidence that its interest were NOT distinguishable from the public and granted the permit to Nansay.
PASH sought review from circuit court and they determined that the HPC erred in finding that PASH and Pilago did not have
interests that were distinguishable form the general public.
Court remanded case and Nansay and HPC appealed.
ICA afffirmed in part and said that PASH did have interests that were distinguishable.
Nansay and HPC applied for writ of certiorari.
Rules:
1) HPC Rule 9-11(C) provides that the relevant governmental authority may grant a SMA use permit only upon finding that
the proposed development
a) will not have any significant adverse environmental or ecological effect
i.) sig. Adverse effect includes the expected primary or secondary consequences of a proposed development
as well as the short and longterm effects or cummulative consequences of the proposal.
ii.) Factors that may constitute adverse effects
A) an irrevocable commitment to loss or destruction of any natural or cultural resource including but not
limited to historic sites and view planes.
B) Effects upon the economic or social welfare and activities of the community county or state.
C) Actions contrary to the objectives and policies of the CZMA and the SMA guidelines.
b) is consistent with CZMA objectives and policies and the SMA guidelines.
c) Is consistent with the General plan Zoning code and other applicable ordinances.
2) Hawaii Constitution Article XII section 7
 a) the state reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and
religious purposes and possessed by ahupua’a tenants who are descendants of native Hawaiians who inhabited the
Hawaiian Islands prior to 1778, subject to the right of the state to regulate such rights.
3) the balance of interest and harms clearly favors a right of exclusion for private property owners as against persons
pursuing non-traditional practices or exercising otherwise valid customary rights in an unrx manner.
4) Passage of HRS § 1-1 fixes November 25, 1892 as the date that Hawaiian usage must have been established in practice
when doing custom analysis.
5) Those persons who are descedants of native Hawaiians who inhabited the islands prior to 1778 and who assert otherwise
valid customary and tradtional Hawaiian rights under HRS § 1-1 are entitled to protection regardless or their blood
quantum
6) Conditions may be placed on development w/o effecting a taking so long as the conditions bear an essential nexus to
legitimate state interests and are roughly proportional to the impact of the proposed development.
Kalipi case:
1) court fashioned a rule permitting lawful occupants of an ahupuaa to enter undeveloped lands within the ahupuaa to
gather those items enumerated in the statute HRS § 7-1.
2) The requirment that these rights be exercised on undeveloped land is not, of course, found w/in the statute.However if
this limitation were not imposed, there would be nothing to prevent residents form going anywhere w/in the ahupuaa
including fully developed property to gather the enumerted items.
a) this would conflict w/ our understanding of the traditional Hawaiian way of life in which cooperation and non-
interference w/ the well-being of other residents were integral parts of the culture.
3) Requirements of Kalipi
a) the retention of hawaiian traditions should in each case be determined by balancing the respective interests and
harm once it is established that the application of the custom has continued in a particular area.
b) Where these practices have, w/o harm to anyone, been continued, we are of the opinion that the reference to
Hawaiian usage in § 1-1 insures their continuance for so long as no actual harm is done thereby.
4) Elements of custom analysis
a) exercised so long that the memory of man runneth not to the contrary (long and general usage
b) w/o interruption
c) peacable and free from dispute
d) reasonable
e) certain
f) obligatory or compulsory
g) consistent w/ other customs.
Pele Defense Fund case:
1) we held that there was a sufficient basis to find that gathering rights can be claimed by persons who do not reside in the
particular ahupuaa where they seek to exercise those rights.
2) Native hawaiian rights protected by Article XII § 7 may extend beyond the ahupuaa in which a native hawaiian resides.
State of Hawaii v. Hanapi
Facts:
Hanapi viewed neighbor’s filling area near ponds as desecration of traditional ancestral cultural site and objected. After state
ordered neighbor to remove the fill, Hanapi trespassed to oversee how work was going on the restoration of a fishpond.
Hanapi claimed native hawaiian rights as a defense.
Rules:
1) the assertion of a constitutionally protected right presents a purely legal issue that must be determined by the court.
2) When a criminal  claims to have been engaged in a constitutionally protected activity, the burden is placed on him or her
tos how that his or her conduct fell w/in the prophylactic scope of the constitution’s provision.
3) In order for a  to establish that his or her conduct is constitutionally protected as a native hawaiian right, he or she must
show at minimum the following three things
a) he or she must qualify as a native hawaiian w/in the guidelines set out by PASH
b) once a  qulaifies as a native hawaiian her or she must then establish that his or her claimed right is constitutionally
protected as a customary or traditional =native hawaiian practice.
 c) A  claiming his or her conduct is constitutionally protected must also prove that the exercise of the right occurred on
undeveloped or less than fully developed property.
4) if property is deemed fully developed i.e. lands zoned and used for residential purposes w/ existing dwellings,
improvements, infrastructures, it is always inconsistent to permit the practice of traditonal and customary native Hawaiian
rights on such property.
Notes:
1) Hawaiian rights is a defense to trespassing
2) Four part test to the defense
a) Must prove that you are hawaiian, and you are practicing a traditional practice, that your predecessors have practiced
on the land, you are on undeveloped land
(6) Adverse Possession
If the true owner of land fails to start legal proceedings to remove a person who adversely
possesses his land w/in the period of the statute of limitations, the true owner is forever barred
from removing the adverse possessor. B/c there is no other owner, the adverse possessor has
taken title to the land and can obtain a judgment to that effect. The adverse possessor acquires
whatever title to the property the owner had. The doctrine of adverse possession combines 2
broad requirements: (1) expiration of the relevant statute of limitations, and (2) adverse
possession during the limitations period.

D. Elements
Although there are many variations of the formula most versions of the elements of adverse
possession emphasize that the possession must be: (1) actual, (2) exclusive, (3) open and
notorious, (4) adverse or hostile, (5) under a claim of right, and (6) continuous for the
statutory period.
1. Actual
The possessor must actually, physically, take possession of owner’s land. The owner’s cause
of action accrues at that moment, and the clock on the limitations period starts to run at
the moment of actual entry.
 Use in a manner that the true owner (TO) would use it under these
circumstances, such that neighbors and other observers regard the occupants as
a person exercising exclusive dominion
2. Exclusive
The possessor has excluded the public and the owner. It does not mean that only one
adverse possessor can occupy. A group of people adversely occupying may acquire a
shared title—concurrent ownership—by adverse possession.
3. Open & Notorious
The adverse possession must be readily visible to any inspector of the property. Open and
notorious occupation constitutes notice to the owner that his rights are being violated.
Occupation is open and notorious if it is the type of occupation a true owner would make.
 Not secret; as an owner would occupy, for all the world to see
i. Underground Occupation
It is difficult to occupy subsurface locations openly and notoriously. To satisfy the open
and notorious element in such cases it is probably necessary to prove that the owner
knew of the occupation, or at least knew of the underground space and that it was
accessible by outsiders. (See Marengo Cave Co.)

Marengo Cave Co. v. Ross

Adverse Possession
Facts: Appellant: Marengo Cave, Appellee: Ross. Owners of adjacent land. Dispute about who owned the
cave that extended under appellee’s land. Appelle Ross wanted to quiet his title to his part of the cave.
The entrance was on π’s property. Π charged admission to visitors to see the cave. Π wanted legal title to
part of the cave underneath ∆’s property by adverse possession. Only found out about Ross’ part of the
cave when Ross requested a survey be taken and the ct ordered it. They would never have known
without the survey. The statute of limitations doesn’t begin to run until the party discovers, or with
reasonable diligence might have discovered, the injury and the cause of action.
Rule:
> Title holder is UNABLE to make the claim against the adverse possessor if he doesn’t know that
the property has been adversely possessed (cave case)
 Notes:
 Court held that possession of the cave was not visible, open, notorious, or exclusive. ∆ could
therefore not have knowledge to act upon such missing knowledge. Π cannot obtain title by
adverse possession.
 Marengo’s possession was not visible: no one can see below the earth and see the trespass.
Marengo’s possession was not notorious: not even Marengo itself knew that the cave extended
beyond its boundaries.
 It has been the uniform rule of equity that the statute of limitation does not begin to run until the
injured party discovers, or w/ reasonable diligence might have discovered, the facts constituting
the injury and cause of action.
 To require an owner to take notice of a trespass on underground areas when it takes place is an
impossibility, and to hold that the statute begins to run on the date of trespass in most cases to
take away the remedy of the injured party before he can know that an injury has been done to
him.
 Marengo claims AP, been using it for at least 20 yrs
 What does one get if can show AP? Title to land. After 20 yr SoL=title passes immediately
(regardless of quiet title).
 The law protects the user who is making use of the property for an interrupted period as against a
TO (owner of record) who fails all together to make use of the property, and doesn’t even visit it to
see if there’s and adverse user.
 Actual possession: weighs in favor of Marengo
Visible: no way of knowing who owns it, weighs in favor of Ross No visbility. No way of knowing it was
under the ground until after the survey. Hard to eject someone from your property if you do not know
they were there and did not know that they were there. Both owners were in an area extremely
valuable

 Open and Notorious: open to the world, knowledge that his land is possessed by another. Favors
Ross bc he doesn’t know the land is his til survey
 Exclusive: can’t both have title at same time
 Hostile/adverse claim: to what extent does one have to show hostility? As long as they can prove
it was permissive. HYPO: lost side by side, A and B, no intent to take other’s property- B had no
expressed intent, however the issue of hostility is satisfied bc B kept it, therefore B gets it. Cts will
imply hostility if AP meets all the other elements.
 Hostility: implied, or you can acquiesce that they have AP it.

4. Adverse or Hostile
An adverse possessor must occupy the land without the consent of the owner and with an
intention to remain. The adverse possessor has no permission to be there and also
claims the right to stay there. “Consent” or “permission” means that the possessor has
occupied in some capacity subordinate to the owner’s title.
 Possession against the whole world, whether or not he has justification color of
title (more than adverse possession-county clerk thinks you own it; may be
fraudulent color of title)
 Claim of right-three difference views
 Focusing on state of mind
5. Under a Claim of Right
By the adverse possessor.
6. Continuous for the Statutory Period
An adverse possessor must occupy continuously—without interruption—during the limitations
period. But this does not mean that the adverse possessor must stay on the land for
 every moment during the SoL. The adverse possessor must occupy the property as
continually as would a reasonable and average true owner of the property.
 Unbroken continuity of possession as the circumstances reflect
 Continuously living on the land is not necessary, if the neighbors are
using the area as a winter getaway, that is all that is required
i. Tacking—Adverse Possessors
A common problem w/ continuity is whether one possessor can add—tack—the
possession of a prior possessor to his own. If privity estate exists between the prior
possessor and the present possessor tacking is permitted. Privity of Estate: the
voluntary transfer from the first possessor to the 2nd possessor of either an estate in
the land or the actual possession of it.
ii. Tacking—Owner
Tacking follows automatically on the owner’s side. Once the statute of limitations has
started to run, the cause of action for ejectment (together w/ its expiring limitations
period) goes along w/ ownership.
iii. Ousting
An adverse possessor who ousts the prior adverse occupant will not gain the benefit of
his predecessor’s possession.

Campbell v. Hipawai Corp:

Adverse Possession
Facts: π claims title by royal patent. ∆ claims title by adverse possession. The adversely possessed land
changed hands several times. In 1958, Chun tore a fence down. In 1968, Chun conveyed the property to
∆. At this time, the statute of limitation was 10 years.
Rule:
 Once title vests by adverse possession, continuous possession is not required.
 Tacking: The traditional rule is that consecutive, continuous periods of adverse possession can
be “tacked” together if there is “privity” between the successors in the adverse possession.
Privity means either that the previous adverse possessor transferred his or her “interest” to the
successor w/ a deed or similar document or else that the successor was the heir or devisee of
the previous possessor.
Notes:
 Case was remanded b/c the jury got a 20-year instruction for adverse possession b/c the law had
changed.
 The law presumed adverse use if use is adverse to the property owner’s rights, even if you don’t
intend for it to be.
 If putting up a fence is interrupting, then the adverse possessor is on notice that there is another
claim, and the period starts over again when the adverse possessor tears down the fence.
 It is public policy that government land cannot be transferred by adverse possession. The
government cannot lose land by accident.
 The law favors the user over the non-user.
 Π’s claim to ttiel traced back to Kamehameha III was legit, traced back to the sovereign makes
title valid. Problem was that once title transfers, it stays transferred: property was adversely
possessed for 20 years from the very first occupants of the land. So while the title was passed
through several owners all the way up to ∆, it was valid at time it occurred, and thus valid title to
∆.
 Campbell is record owner=royal patent grant.
 Hipawai: AP
 Who owns the Crown lands? Royal family? Or Royal family for the people?
 14  15  4
 HP  Campbell
 Parcel 15 was being cultivated  On the record , she
as parcel holds 15 as well
14>Woolsey>Smith>Deed>Chun  Record title all the
way down to present Campbell
 owner
 Appellate ct: failed to instruct jury on 10 yr SoL rule (not 20 yrs)=64 yrs total.
 Exclusive, actual, visible, open and notorious, hostile and adverse (presumed from clear use by
people on parcel 14)
 How much occupancy is sufficient?
 Interruption? Fence separating parcels 14 and 15. Constitutes an interruption. He tore it
down.=starts it again
 Hawaii AP Law:
 Scalia: don’t ever quote legislative opinion to me, the Statute or Constitution means what it says,
unless there’s ambiguity: then Cts interpret.
 Note 11: exceptions to the time period.

E. Exceptions
Disability: Gives the true owner 5 years from the date the disability expires to bring action,
even if the adverse possession statute has already run out. Disabilities can be mentally
incompetent, imprisonment, under 18, etc… While periods of adverse possession can be
“tacked” together, periods of disability can’t. Disability must have commenced BEFORE
the adverse possession commences.

Ex. If X is age 5 when Y commences an adverse possession in 1990, in which year

does Y’s title ripen into ownership?
2010: X’s disability ends in 2003, but 20 years of adverse possession is 2010; disability
doesn't matter, only gives 5 years after the disability to bring suit.
Ex. If X is age 16 at the time Y commences his 1990 occupancy, and he becomes
insane at 17 and remains so for the rest of his life?
2010: X’s disability ends in 1996, but 20 years of adverse possession is 2010; disability still
doesn’t matter.

 Airspace

A. Common Law
Common law courts proclaimed that each landowner owned “to the heavens.” In theory, each
landowner held title to a column of air space that extended upward from the land surface for
an infinite distance. Any intrusion that interfered with the owner’s exclusive possession of this
air space was deemed a trespass.

B. Modern Rule
The common law absolutist position collapsed w/ the invention of the airplane. The rule would
subject the operator of every transcontinental flight to countless trespass suits. It was
accordingly necessary to formulate a new approach to ownership of air space. Modern
courts uniformly agree that an airplane overflight w/in navigable air space is not
trespass.

C. Reasonable Use
It is increasingly accepted that a landowner owns only the air space that is reasonably
necessary for the use or enjoyment of the property. While landowner O owns enough air
space above her land to accommodate a high-rise office building, her ownership rights do not
extend infinitely upward. (See Geller)

Geller v. Brownstone Condominium Ass’n

Air Space
Facts: Property owner filed for an injunction to stop condominium owners from utilizing scaffolding
machinery over his building. He claimed that the scaffolding or construction error could harm him/his
property. The construction was infringing on his air space.
Rule:
 A property owner owns only as much air space above his property as he can practicably use.
And to constitute an actionable trespass, an intrusion has to be such as to subtract from the
owner’s use of the property.
Notes:
 Held for D/scaffolds (Owners compl. Is insufficient to state a cause of action)
 Airspace is usually defined as “navigable airspace.”
 Limit to air space-Callise: bad case bc it’s analogous to say that you have 1000 acres that you
don’t use all of, so I can use it. Doesn’t make real world or logical sense.
 HYPO: if I own a railroad corp, and the next door neighbor decides it’s going to build a cantilever.
Is there relief? According to this case: as long as doesn’t encroach, make prop less valuable,
cantilever is 1000 ft up.
(1)
(8)Transfer to the Sovereign: Eminent Domain (Physical Takings)
(2)
 Eminent Domain Power
All governments in the United States have the power to take private property for public purposes,
but that power (the eminent domain power) is limited by the U.S. constitution. The U.S.
Constitution’s Fifth Amendment provides that “private property [shall not] be taken for public use
w/o just compensation.” This is often called the “takings clause” or the “eminent domain” clause.
-can have partial eminent domain. Ingress, egress, ONLY HAPPENS WHEN GOV BUILDS A
ROAD: build road and block access= form of eminent domain.
-Ex: if gov blocks you in, they’ve decreased the value of your prop bc there’s not way on or off,
therefore they must give you just compensation.
A. All Property Protected
The takings clause protects all property, no matter whether it is tangible or intangible.

B. Applies to All Governments

The takings clause applies to the states as well as the federal government. The substance of
the takings clause is “incorporated” into the 14th Amendment’s due process clause, which is
applicable to the states.

C. Purpose
The takings clause serves 2 important and related purposes: (1) Preventing forcible
redistribution of property & (2) having takings permitted only for public benefit.

1. Prevent Forcible Redistribution of Property

The takings clause prevents forcible redistribution of property by stipulating, through the just
compensation requirement, that when governmental power is used to take private
property the public pays the property owner the value of the property taken.
2. Takings Permitted Only For Public Benefit
The public use requirement was designed to prevent any taking, whether or not
compensated, that forces a transfer of property from one private person to another w/ no
public benefit in the forced transfer. Governmental power to take property may only be
exercised for public benefit.

D. Consequential Damages
Government can also condemn or impair interest in land that are less than full title.

HYPO: 2010-bc the SoL is 20 yrs, AP began in 1990. Disregard disability. Bc it’s longer.
HYPO: 2010-doesn’t matter if disability takes place during the time of AP. IT ONLY
MATTERS IF DISABILITY WAS IN PLACE WHEN RIGHT OF ACTION FIRST ACRUES (first
start AP) therefore, disregard insanity.
**disabilities aren’t tackable
 Natrual attributes of soverginty
o Gov has ability to seize private property.
 o Exercise police power. Help the citizens.
Pumpelly v. Green Bay Company pg. 181
Eminent Domain, Consequential Damages
Facts: The Wisconsin legislature created a system of improving the navigation of the Fox and Wisconsin
Rivers, adopting a dam as part of the system. Construction of the dam raised the lake water so high as to
overflow all of π’s land, and the nature of the injuries caused an almost complete destruction of the value
of the land. However, the legislation made no provision for compensation to π, or those similarly injured,
for damage to their lands.
Rule:
It would be odd to hold that government can destroy the value of real property w/o entirely
converting it to public use and not compensate, b/c it is not taken, in the narrowest sense of that
word, for the public use.
Notes:
The injury to π’s property is w/in the protection of the just compensation limitation on the exercise of
the rights of eminent domain.
Where real estate is actually invaded by superinduced addition of water, earth, sand, or other
materials so as to effectively destroy or impair its usefulness, it is a taking w/in the meaning of the
Constitution.

 The Public Use Requirement

The Constitution states “…nor shall private property be taken for public use, w/o just
compensation.” No governmental seizure of private property may occur, even if just
compensation is paid, unless it is for a public use.

A. Problem of Defining Public Use

American courts have struggled for over two centuries to define “public use.” The phrase
implies that condemnation is permitted only if the affected land will be physically used or
occupied by members of the public. This “physical use” standard was adopted by 19 th
century courts, but withered away during the 20 th century under the pressure of changing
political and social conditions.

B. The Public Purpose Test

Two landmark Supreme Court decisions (Berman & Midkiff) signaled the shift to a new
standard: the public purpose test. Under this approach, public use is defined by the purpose
underlying the government action. As long as property is taken for a legitimate public purpose
—the public use requirement is satisfied.

Public use has been expanded over the years—now it is satisfied w/ a showing that the
use “benefited” the public. It is very loosely interpreted. So long as the state’s use of
eminent domain power is “rationally related” to a “conceivable public purpose,” the public-use
requirement is satisfied.

C. Just Compensation
The private property owner is entitled to the fair market value of the taken property. Fair
market value includes any reasonable expectations that a buyer may have about possible
future uses. An owner is not entitled to any additional value that is subjective and peculiar to
the owner.
The 5th Amendment protects rights to due process and just compensation.
You need a general plan!!!! You have this notion that this is in accordance with a plan. The plan
is what permits other properties to be included in the redevelopment area and taken by eminent
domain.
Berman v. Parker
Eminent Domain, Public Purpose Test
Facts: The District of Columbia condemned π’s department store in a blighted area as part of a large-
scale urban renewal program to eliminate unsafe, unsanitary, and unsightly buildings. The District
intended to resell the land to entrepreneurs who would build privately owned projects consistent w/ the
urban renewal plan. Π’s sued to enjoin the condemnation, arguing it was “a taking from one businessman
for the benefit of another businessman.”
Rule:
If government has the right to exercise the police power for a particular public purpose, then it
has a right to condemn property as well.
The power of eminent domain is merely the means to an end.
Notes:
Once the object Is w/in the authority of Congress, the right to realize it through the exercise of
eminent domain is clear. For the power of eminent domain is merely the means to the end. Once
the object is w/in the authority of Congress, the means by which it will be attained is also for
Congress to determine.
The public end may be as well or better served through an agency of private enterprise than through
a department of government—or so the Congress might conclude.
 Concept of public welfare is broad and inclusive; if Congress decides an area for “public use” it
isn’t a violation of 5th Amendment.
Legislative deference
The big stick-the gov can always take your property provided it complies
Requires 2 things: 1) public use 2) just compensation
Purpose was to get rid of the slums.
S Ct: didn’t want to use a piecemeal standard, wanted the whole slums torn down and rebuilt.
What use was going to made of this from a public standpoint? Very little evidence for public use (J’s
argument: safe pretty place, police power, Congress authorizes agencies to determine things for
public welfare, HOWEVER, this is an eminent domain case
Midkiff
 Leasers in Kahala and Hawaii Kai, allowing them to buy the house they leased, buy lease home +
fee, price went up
 Across the board, “public use”
 Hawaii’s land reform act-prevent oligarchy that raise land prices-
 Land was taken under condemnation.-condemn the lease land under their home then sell to
anybody, gov never had to put up a dime for just compensation, land went to auction and the
renters bought it
 Public use: inconceivable or an impossibility
(3)
Kelo v. City of New London
Eminent Domain, Public Purpose Test, Single-Family Home
Facts: New Londong approved a redevelopment plan and authorized NLDC to purchase property or
acquire it by exercising eminent domain in the city’s name. Negotiations w/ Kelo failed. NLDC then
initiated condemnation proceedings. Kelo’s property was not blighted; it was condemned only b/c it was in
the redevelopment area.
Rule:
As long as the legislature determines an area unsuitable for public use, reasonably perceived,
then it qualifies.
Project which gov is undertaking must be rationally related to a conceivable public purpose. (A
remedy is left for states-state legislatures determine how they want to interpret public use.
Notes:
SCOTUS (Stevens) held that the city’s proposed disposition of this property (private development)
qualified as a public use within the meaning of the Takings Clause. A state may transfer private
property from one private party to another private party if future use by the public is the purpose
of the taking.
The takings here would be exacted pursuant to a carefully considered development plan, which was
not adopted to benefit a particular class of identifiable individuals.
Kennedy
 o He says that there wilbe instances where the prop of the public purpose will be struct
down where the benefits are incidental or pretextual.
o Ct says we don’t look at public use if it is not conceivable. If it is pretexutal, you are
stating a purpose, comes from a federal district court case from California.

While the city is not planning to open the condemned land to use by the general public, this court long
ago rejected any literal requirement that condemned property be put into use for the general
public. Rather, because public use has been interpreted as public purpose, this case turns
on whether the development plan serves a public purpose.
The city’s determination that the area was sufficiently distressed to justify a program of economic
rejuvenation is entitled to deference. The city believes the plan will lead to new jobs and
increased tax revenue. Because this unquestionably serves a public purpose, the takings satisfy
the 5th Amendment.
The argument that the Court adopt a bright-line rule establishing that economic development does not
qualify as a public use is supported by neither precedent nor logic. Promoting economic
development is a long-accepted governmental function. The Court also rejects the argument that
there should be a reasonable certainty that the expected public benefits will accrue – if so,
construction cannot commence.
DISSENT: To reason that the incidental public benefits resulting from the subsequent ordinary use of
private property render economic development takings “for public use” is to wash out any
distinction between private and public use of property—and thereby effectively to delete the
words “for public use” from the Takings Clause. Any property may now be taken for the benefit of
another private party—the beneficiaries are likely to be large corporations and development firms.
As for the victims, the government now has license to transfer property from those with fewer
resources to those with more.
DISSENT: If such economic development takings are for a public use, then any taking is, and the
Court has erased the Public Use Clause from out Constitution.
Eminent domain: public use: economic revitalization
Callies: not being used by the public (not a school, park, etc).
Dissent: Public purpose=public use, virtually no public use
Parcels being condemned were to be: roadways, parks, etc. Those are public uses. However, the
ENTIRE PLAN isn’t for public purpose (condemning land just bc it will generate more money for
the community)
Is this conceivable public purpose? Yes. Is it impossible that this is for public purpose? No.
One area that fed cts are able to invalidate eminent domain: PRETEXTUAL, if the declared public
purpose doesn’t exist (it’s pretextual)
CASE:Costco announced it wanted to expand to development company>company said there’s vacant
property>Costco wanted 99cent store property (snuff out the competition)>Costco said we’re
moving if you don’t use your authority> Development company did and used reason: Costco told
us to, there was a possibility of “future blight”>PUBLIC PURPOSE IS THEREFORE
PRETEXTUAL.=Under those circumstances (pretextual), then the S Ct comes up with a different
conclusion
CASE: Kupee v. County of HI=bypass rd was going to be constructed on Kupee, Mamalahoa Hwy:
failed development of 750 homes, under terms of development agreement developer was
required to construct bypass rd. $100 mill rd. Kupee refused to sell land for County to build rd.
Kupee attorney said it’s pretextual. This is going to benefit the new development, therefore not
public purpose. Rd is public use, going to benefit somebody’s property, still a public purpose.
Dissent: a rd is for public purpose. Kupee eventually lost their land.
PRETEXTUALITY IS THE ONLY DEFENSE LEFT
D. Limitations on Highway Access
Government can condemn or impair interests in land that are less than full title. Highway and
street access is a case in point. Individuals need access to be able to enter and leave their
properties. Businesses need access so they will be readily accessible to patrons. Without
access, a business may fail.

1. Early Days of Construction

 In the 1970s, denial of access problems often arose when the construction of a new limited-
access highway diverted traffic away from an older and established road where access
was unlimited. Businesses on the old road lost most of their clientele and were forced to
close.
2. Now
Now that the interstate system is completed, denial of access problems are more likely to
arise when highways are reconstructed or improved. (See State of Indiana)
3. Ingress/Egress Claims Actionable
Cases that allege interference w/ a landowner’s rights of ingress and egress may present a
compensable taking where the interference is substantial or material.
4. Traffic Flow Claims Not Actionable
A property owner whose land does not abut on the highway is not entitled to compensation
merely b/c the construction makes it more difficult to get on the highway. A mere change
in the grade or widening of the highway or the construction of a divider strip which
changed the free flow of traffic cannot constitute a taking.
(4)
State of Indiana v. Dunn
Eminent Domain, Limitations on Highway Access
Facts: State built a median, which prevented southbound traffic from making left turns into the road
entrance to Dunn’s subject property. Dunn filed an inverse condemnation action, claiming the State’s
actions constituted a taking of his property without just compensation. Lower court ruled in in favor of
Dunn. Reversed.
Rule:
The construction of a divider strip, or median, that causes traffic to and from a property to travel
a more circuitous route does not constitute a compensable taking under eminent domain law
b/c the landowner does not have a property right in the flow of traffic past his or her land.
Notes:
Court of appeals reversed, finding Dunn’s claim a “traffic flow” claim, therefore unactionable.
It is well settled that the right of ingress and egress is a property right which cannot be taken without
compensation.
However, a property owner is not entitled to unlimited access to abutting property at all points along
the highway.
The general rule is that there is no property right of an abutting property owner in the free flow of
traffic past his property and economic damage to a business due to a State action resulting in
such a route is not compensable b/c the landowners have no property right in the free flow of
traffic past their place of business.
Inverse condemnation: didn’t file an action, but what you’ve done is taken my property. Ex: Engineers
mess up how far water will rise when they dam a river. File action of inverse condemnation: you
took my property (value) by flooding it
Did it take away actual access? No. And one MUST HAVE a RIGHT IN PROPERTY TAKEN to bring
a regulatory taking (Ex: leasehold)
Ct: you’re not entitled to unaffected circulation. If access was cut off or almost cut off, you’d win bc
that’s protected by the Constitution.
Extent to what condemnation has gone: condemnation of mortgages: condemning underwater
mortgages. Taking that mortgage and converting to rate that owners can pay. Only ones being
condemned are ones that are successful, not the junk ones. Mortgages generate income when
people pay interest on their loans. So people bund a could hundred of these mortgages at once,
good and bad ones, and then sell to public to generate income. Underforming, so nothing coming
out of security at all. Fix it by having gov getting houses reoccupied, gov needs to exercise
eminent domain. Cali approved condemnation Oakland Raiders franchise to keep Raiders there.
VIRTUALLY NO DEFENSE IF THE GOV WANTS TO TAKE YOUR PROPERTY. As long as gov
meets low standard of public purpose not inconceivable or impossible.
9. Sovereign Restrictions Land Development & Police Power: Regulatory Takings

 The Takings Problem

 When does land use regulation become a “taking” of private property? The Takings Clause of the
5th Amendment provides: “Nor shall private property be taken for public use, without just
compensation.” At some point, regulation may be so restrict an owner’s rights as to become a
taking—thus requiring payment of compensation—even though government does not physically
occupy the land.

A. Pennsylvania Coal Co. v. Mahon & Its Aftermath

This case is generally recognized as the birthplace of the regulatory takings doctrine.

1. Holmes Majority Opinion

Holmes conceded, “government could hardly go on if to some extent values incident to
property could not be diminished w/o paying for every such change in the general law.”
On the other hand, “if regulation goes too far it will be recognized as a taking. Holmes
emphasized, one fact for consideration was the extent of the diminution—the extent
to which the regulation diminished the fair market value of the property. Holmes
also considered, the extent of the public interest served by the statute.
2. Brandeis’ Dissenting Opinion
This case is clearly controlled by the Mugler-Hadacheck rule: a restriction imposed to protect
the public health, safety or morals from dangers threatened is not a taking. The statute
merely prohibited a noxious use—subsurface mining that endangered the public.
3. Aftermath
The Pennsylvania Coal decision left the law of regulatory takings in confusion. A regulation
would indeed be a taking if it went “too far,” but exactly what did this mean?

Pennsylvania Coal Co. v. Mahon

Police Power & Land Use
Facts: PCC deeded the surface to Mahon for a house but reserved the right to remove all underground
coal. In PA, underground rights are a separate property interest from the surface rights. Mahon seeks to
prevent PCC from underground mining according to the Kohler Act, which forbids the mining of coal in
such a way as to cause subsidence of any structure used as habitation.1) found for Penn, 2) held for
Mahon 3) Reversed, held for Penn.
Rule:
 The general rule is that while property may be regulated to a certain extent, if regulation goes
too far it will be recognized as a taking.
Notes:
 Holmes is concerned w/ the ability of PCC to exercise its property and contract rights and what
the Act does to the coal company about how the Act concerns the public welfare. Damage to one
house is not a public nuisance, according to Holmes.
 “We are in danger of forgetting that a strong public desire to improve the public condition is not
enough to warrant achieving the desire by a shorter cut than the constitutional way of paving for
the change.” Holmes thinks that b/c the Act goes too far and takes away all economic value from
PCC’s property rights, the State must pay just compensation to PCC.
 The court must balance the public interest vs. the loss in property value.
 Dissent (Brandeis): If the Act is a police power regulation, there is no constitutional infirmity as
long as the regulation is for some legitimate state purpose. Why are we talking about adverse
effects on property? What about the sinkholes? What do you mean this is a case about a single-
family house?
 Balancing Test to Determine if “Taking” Took Place:
 (1) Extent of the public interest involved
 (2) Extent of the taking and the diminution of the property value and interest.
 If harm to the property interest is proportionately less than the police power objectively then there
is no compensation required.
 State is trying to exercise its rightful police power.
 What’s the purpose of this statute? Protect property owner’s from subsidence. Is this a proper use
of police power? Is it protecting people? Yes
  Single private house v. all surface rights of coal company=ct wants to hold for coal company.

B. Basic Modern Standard for Regulatory Takings: Penn Central Transportation Co. v. NY
City
The Penn Central takings test brought must needed coherence to the regulatory taking law.
Although this case has been substantially devalued by later decisions by the court, it remains
the basic standard used to resolve most regulatory takings cases today. Penn Central has a
three-factor balancing test for determining when a regulation constituted a taking.

1. The Economic Impact of the Regulation on the Claimant

2. The Extent to which the Regulation has Interfered w/ Distinct Investment-Backed

Expectations

3. The Character of the Governmental Action

Penn Central Transportation Co. v. City of New York

Regulatory Takings, Partial Regulatory Takings
Facts: π wants to build an office building on top of Grand Central Terminal (cantilever, tons of stories
high, 55 stories- taller than actual GCT), which is designated as a historic landmark by ordinance. Π
claims that the height restriction of the ordinance is a taking of property without just compensation.
Rule:
 A law which does not interfere with an owner’s primary expectation concerning the use of the
property, and allows the owners to receive a reasonable return on his or her investment, does
not effect a taking which demands just compensation.
 Partial Takings Test—To determine if there has been a partial taking, the court will look at: ICE.
(5) Interference: The extent to which the regulation has interfered w/ distinct investment-
backed expectations on the property. Distinct expectation. See below.
(6) The Character of the government’s action (Health, safety, welfare, aesthetic). Health and
safety=advatange gov, Aesthetic=advantage property owner
(7) The Economic impact of the regulation on the claimant (property owner). Whether the
land still has an economically beneficial use.
Notes:
 Even though Grand Central has been substantially devalued, according to this test it is still okay,
and SCOTUS says this is a valid exercise of NY’s police power.
 Π makes 5th and 14th Amendment claims, but Court only deals w/ 5th amendment saying that it is a
taking issue only. The landmark regulation doesn’t interfere with the way π’s have been running
Grand Central for the last 65 years, so the regulation doesn’t interfere with what must be
regarded as π’s primary expectation concerning the use of the land.
 Π’s haven’t been prohibited from musing any of the airspace above their land. They’ve just been
prohibited from using it in the fashion they decided they want to use it.
 Ultimately, the application of NYC law is not a taking. Restrictions substantially relate to
promotion of the general welfare and permit reasonable beneficial use of the landmark site. Also
affords opportunities to enhance the Terminal and other sites.
 Police power: welfare clause-covers development
 Aesthetic regulation
 Not a total taking bc still able to use it as a train station. Therefore what is it? A partial taking by
regulation
 Can have DISTINCT investment backed expectation but must also be REASONABLE.
 Cir Cts: tough on this, regulations dropped by 90%, not a categorical taking bc still can use land
and not a sufficient screwing up of the investment backed expectation

C. Special Rule for Loss of ALL Economically Beneficial or Productive Use (Lucas)
 In Lucas, the SCOTUS adopted a “categorical” takings rule: a taking will always be found if
regulation eliminates all economically beneficial or productive use of land, unless the
regulation is justified under background principles of property or nuisance law.

1. The Regulation Must Deprive the Owner of ALL Economically Beneficial or Productive
Use of Land
This standard was met in Lucas because the trial court found that the construction ban
rendered the lots totally valueless—a clear case.

2. Unless Justified by Background Principles of the State’s Law of Property & Nuisance
State nuisance law, the public trust doctrine, custom, and the right to destroy property without
compensation in emergency situations is included.

Lucas v. South Carolina Coastal Council

[Total] Regulatory Takings
Facts: Lucas bought two residential lots on which he intended to build single family homes. South
Carolina then enacted the Beachfront Management Act to manage development activities in the coastal
zone. This barred Lucas from erecting any permanent habitable structures. State: preserve the land bc of
tidal erosion, prevent further damage, prevent danger to public in general. State was exercising its police
power. However, the ban rendered the lot totally valueless.
Rule:
 When the owner of real property has been called upon to sacrifice ALL economically beneficial
uses in the name of the common good, that is, to leave his property economically idle, he has
suffered a taking and must be compensated.
Notes:
 Economically beneficial use is different from economic value, because land always has value.
 Government can take all economically beneficial use for human health and safety, but not so
much for public welfare.
 If the statute just codifies the owner’s inability to do a nuisance, then there is no need for just
compensation.
 If the restriction touches upon a property right that was not part of the owner’s original bundle of
rights, no just compensation is required.
 If a background principle of a state’s law of property is involved—custom and public trust.
 The whole thing is developed into single family homes.
 Can’t build bc illegal bc amendment to the Act
 Not valueless bc homeowners next to the property can buy it, extend their property even though
can’t build
 If it strips if of its entire use>>taking
 Categorical rule is the equivalent to the exercise of eminent domain. Harm-based is code for
other stuff, easy to categorize things that are for public as harm-based.
 Raises issues: what if I buy property knowing that it’s in a zone that doesn’t permit development?
>> State may take it, and give you just compensation. No notice requirement in respect to a 5th
amendement TOTAL TAKING
 2 exception: 1) nuisance and 2) background principles of state property law>>then State can take
all econ value of property and NEED NOT PAY. = bc never a part of your rights to begin with
(under State law), not originally part of your bundle of sticks=not a taking.
 Principles: PUBLIC TRUST AND CUSTOM=not compensable
Footnote: Total takings aren’t going to happen very often. Usually can you keep it residential

(10)Regulatory “Takings” & Judicial Takings

 Judicial Takings-don’t need to know

A judicial taking is a court decision that deprives a property owner of a pre-existing, established
right in that property. It is analogous to eminent domain. (See Robinson)
 A. Robinson v. Ariyoshi

Robinson v. Ariyoshi
Judicial Takings
Facts: π’s owned land grants where rain fell heavily in higher elevations than in lower. Π got title from the
territorial court, which held that πs were owners of normal surplus water flowing and confirmed their right
to divert water outside the drainage area (prior appropriation). The economy at the time was large scale
sugar production—this required lots of water and flat land (those 2 things are usually incompatible); thus
companies were shipping lots of water via dams, flumes, and ditches. HI S. Ct. now overrules all territorial
cases and adopts the riparian rights doctrine (you have rights to water if you own the land adjacent to it).
Rule:
 State legislature and State Courts get to say what a state’s property rights are.
 If property rights are vested, those rights continue even if the law changes. If the Court changes
the law and divests you of those property rights, the State must pay just compensation.
Notes:
 New law cannot divest rights that were vested before the court announce the new law.
 There is no barrier from the state to exercise its power of eminent domain
 However, the πs in this case cannot be divested of their property rights without just
compensation.
 When parties rely on something that was legal at the time and in reliance expended money, the
rights become vested. The state can still take the rights through eminent domain, but must give
just compensation.
 Before becoming a riparian state, HI was a “prior appropriation” state (whoever gets the water
first gets to use it).
 Ripeness grounds-doctrine: a case must be the primary grounds a P alleging regulatory taking
has to have done everything reasonably possible to obtain permission to develop. One doesn’t
need to make attempts that are demonstratively futile.
 4 justice plurality examines ripeness- fed circuit ct revently held in important case: the ripeness
doctrine is a prudential doctrine not juris doctrine, cts are able to DECIDE WHEN TO APPLY.
 En banc- 3 judge panel decides one thing, the person asks for a retrial with all judges sitting
 Suit between property owners turned suit against the state
 How did this get to state S ct? riparian rights
 If you don’t have riparian rights, then they thought the were operating under PRIOR
APPROPRIATION
 Up to this point it was: Prior Appropriation: whomever gets water first gets to use it
 Changed to: Riparian rights: have to be next to it to get it. = you don’t have any water rights
besides taking it out as a riparian. Your dykes are worthless, you can’t take it and put it
somewhere else. State decides prop right
 Triggered con law issue: 14th amendment: taking prop without DP of law. The S. Ct took the prop-
can they take prop?>> Went to fed ct: 9th Cir.
 Neither party had argued riparian rights.
 There water rights had been VESTED, so along with their equipment-landowners had right
 Only eliminate vested rights if you pay for it.

 Regulatory Takings Overall

In order to challenge a governmental regulation as an uncompensated taking of private property,
one must proceed under one of four theories. (See Lingle)

A. Lingle v. Chevron

Lingle v. Chevron
Regulatory Takings
Facts: A HI statute seeks to protect independent dealers by imposing certain restrictions on the ownership
and leasing of service stations by oil companies. It prohibits oil companies from converting existing
lessee-dealer stations to company-operated stations and from locating new company-operated stations in
close proximity to existing dealer-operated stations. The amount of rent an oil company can charge a
lessee-dealer is also capped.>>Chevron said this was a taking
Rule:
 In order to challenge a governmental regulation as an uncompensated taking of property, one
must proceed under one of the following theories: (1) Physical Takings (Eminent Domain); (2)
Lucas Type—Regulatory Taking (deprivation of all beneficial use); (3) Penn Central Taking—
Partial Taking (Investment Backed Expectations); (4) Nollan/Dolan—Land use exaction.
Notes:
 SCOTUS abolished the “substantially advances a legitimate state interest” threshold standard for
determining when a land use regulation becomes a taking under the 5 th Amendment. The opinion
is important for the Court’s summary of present regulatory takings law, at least as applied to
disputes involving the regulation of property.
 Physical Takings: Where the government requires an owner to “suffer a permanent physical
invasion of her property—however minor—it must provide compensation.
 Lucas: Where government regulations completely deprive a landowner of “all economically
beneficial use” of the land, government must pay compensation for a total regulatory taking
except to the extent nuisance or the background principles of a state’s law of property restrict the
landowner’s intended use.
 Penn Central: This case sets out criteria for the run-of-the-mill, partial taking by governmental
regulation.
 Nollan/Dolan: There must be a connection or nexus between a land development exaction and a
proposed land use development and the exaction must be proportional to the impact of the
proposed development.
 Rule used to be: regulation takes away economically viable use but also fails to advance a legit
state interest.
 Never should have been part of the 5th amendment regulatory taking>>should only EVALUATE
STATE INTEREST UNDER 14TH AMENDMENT. >>therefore, Chevron loses bc they brought
under 5th amendment (takings clause)
 **Reread for finals
 Lucas is good law: all econ beneficial use. Total taking. If not, then decide if there’s a partial
taking (Penn).


(5) Local Land Use Controls: Zoning

 Zoning Basics
The main type of public land use regulation is zoning. Zoning is generally done on the local,
municipal level. The municipality’s power to zone comes from the state “police power,” or power
to act for the general welfare, which is delegated by state statute to the municipality.
 Hawaii has statewide zoning
 95%=ag or conservation
 5%-urban: only in urban districts do they have sole control over land per police power
 I WANT YOU TO LET ME DO WHAT I WANT, EVEN THOUGH IT’S IN THE
INCORRECT ZONE. V. Takings- doing something that makes it impossible for me to live
here, and you must compensate me
 Bigger concept than takings
 Facial violation: Ex: black people can’t liver here, on its face, it’s a violation
 As applied: the way this law affects me personally is unconstitutional.

A. Use Zoning
Most zoning is use zoning, by which the municipality is divided into districts, in each of which
only certain uses of land are permitted (i.e. a residential only district, a commercial district,
etc.).
 B. Density Controls
Other zoning laws govern the density of population construction. Thus a town might establish
a minimum lot size for single-family homes, minimum set-back requirements, minimum
square footage for residences, and height limits.
C. Aesthetic Zoning
Most courts hold today that aesthetic considerations may constitute one factor in a
municipality’s zoning decision. But aesthetics may not be the SOLE factor.

 Legal Limits on Zoning

There are four types of constitutional limits that are placed on zoning.

A. Takings Clause
The 5th Amendment Taking’s Clause means that if a zoning regulation is so overreaching that
it deprives the owner of all economically viable use of his land, the zoning will be treated as a
taking for which compensation must be paid.
B. Procedural Due Process
The 14th Amendment’s Due Process Clause imposes certain procedural requirements on the
zoning process. For a zoning action that is administrative rather than legislative, an owner is
entitled to a hearing, an impartial tribunal, and an explanation of the government’s decision.
C. Substantive Due Process
If the zoning law fails to bear a rational relation to a permissible state objective, it may violate
the substantive aspect of the Due Process Clause (ex. A zoning law that limits a district to
single-family occupancy, and defines “family” so as to exclude most extended families,
violates substantive due process).
D. Equal Protection
A zoning law that is adopted for the purpose of excluding racial minorities will trigger strict
judicial scrutiny, and will probably be found to be a violation of the Equal Protection Clause of
the 14th Amendment.

 Administration of Zoning
Several governmental bodies generally get involved in zoning.

A. Town Council
The zoning code is enacted by the municipal legislature. Usually this is the town council.
B. Board of Zoning Appeals
A “board of adjustment” or “board of zoning appeals” usually exists to award or deny
variances, and to hear appeals from the building department’s enforcement of the zoning
laws.
C. Planning or Zoning Commission
The town council generally appoints a planning commission or zoning commission. The
commission generally advises the town council on (but does not independently determine)
the contents of the zoning code.

Village of Euclid, Ohio v. Ambler Realty Co.

Zoning, Police Power
Facts: The village municipal corporation established a comprehensive zoning plan through an ordinance
(legislative act) of the village council. The zoning plan separated residential from industrial uses based not
on health or safety, but on the public welfare. Ambler Realty owns a tract, which will be devalued if limited
to residential, and thus the zoning ordinance is a deprivation of property without due process of law (14 th
Amendment constitutional challenge). Ambler challenged the ordinance generally (facial challenge) as
opposed to making an as-applied challenge. “The exclusion of buildings related to business, trade, etc
from residential districts bears a rational relation to the health and safety of the community.”
Rule:
 Zoning ordinances are a valid exercise of the police power and thus do not violate the
constitutional protection of property rights.
 For an ordinance to be declared unconstitutional as a violation of the 14 th Amendment police
power, it must be clearly arbitrary and unreasonable, having no substantial relation to the public
health, safety, morals, or general welfare.
 Ordinances, laws, and regulations must be justified in police power asserted for the public
welfare, and must be considered in light of all circumstances and conditions.
Notes:
 The main question SCOTUS dealt with was whether it was constitutional to restrict apartment
buildings and stores from being within purely residential zones. S. Ct. decided it was acceptable.
 If it is a proper exercise of the police power to separate industrial from residential, it is not easy to
deny the power to divert industrial development from its natural course, which if left alone would
cause injury to the residential public. Thus, the exclusion of buildings devoted to business from
residential districts bears a rational relation to the health and safety of the community.
 This decision upholds zoning as a legitimate police power. Moreover, where an injunction is
sought against the mere existence of the ordinance, it cannot be said that the landowner has
suffered a present injury, which entitles him to challenge the constitutionality of specific
provisions.
 In zone one, only single-family residences are allowed. In order for the zoning ordinance to be
valid, the apartment house must be a nuisance, which the Appellant is attempting to exclude from
zone one. This court found that apartment houses were a nuisance to single-family houses, and
thus, the zoning ordinance was proper. Talk about apartments. Why is the court goin on about
apartments. This zone keeps out of apartments want to keep out the irish and Italians. They are
trying to preserve the sanctitiy of a single family district free of all those other folks and their
apartments moving in. this is the essence of what they are trying to do. And this is what was
argued upon rehearing. Petiiton for rehearing filed without notice to the other party. Talk about
the consequences about the zoning. This is an attack on the ordinance as a whole on its face.
 Euclid is not landlocked-there are highways and railroads around it.
 Classified: U2-residential only, U3-apts, hotels, schools, U6-everything
 Cumulative zoning: U2 encompasses U1 plus other stuff…U6 encompasses everything from U1-
U5 plus more
 Hawaii: duplex, no yards, paved for many cars=perfectly legal. What’s the extent of regulation
you can do?
 Worth $10,000 per acre>>would go down to $2500-Ct wanted to find for land owner
 Facial-no matter how you look at the ordinance it’s unconstitutional
 Issue: arbitrary or unreasonable exercise of police power? If it is it violates 14 th amendment.

Pierro v. Baxendale (motel permit)

Zoning, The Zone
Facts: π applied for a motel permit within a residential district but was denied. Trial Ct found for plaintiffs:
ordinance was invalid and they get a permit. S Ct: motels cater to the general public and must serve them
indiscriminately. Hurt the property value>>Reversed and said no motel.
Rule:
 Legislative bodies may make such classifications as they deem necessary and as long as their
classifications are based upon reasonable grounds so as not to be arbitrary or capricious the
courts will not upset them.
 Reasonable restrictions designed to preserve the character of a community and maintain its
property values are with the proper objectives of zoning.
 Unreasonableness—A complaining party must show that the legislative decision/ordinance was
unreasonable, arbitrary and capricious.
Notes:
 The operation of motels in some areas would impair existing property values. That is part of the
general welfare and there’s no reason that such communities as part of their zoning can’t exclude
such enterprise.
 A court CANNOT substitute its decision for those legislative bodies. Courts defer to legislative
bodies.
 Reasoning: A motel is a business institution that caters to the general public and is obliged to
serve the public indiscriminately. As a business institution, they possess the attributes, which
have led to the exclusion of businesses generally from residential zones. Conversely, boarding
and rooming houses are less public in character to motels. This distinction is made w/ reasonable
basis.
 Zoning is designed to promote, not only health and morals, but also general welfare.
 . Officials in Palisades park viewed boarding and rooming houses as being consistent with
residential areas and motels as being inconsistent. It is clear that decision was not erroneous.
Once selections are made and duly emobided they become presumptively valid and they are not
to be nullified except upon affirmative showing that action was unreasonable, arbitrary or
capricious. Zoning is deisnged to protect and pomote the health and morals but also the general
welfare. Ct is satisfied that municipal officials have been sufficentyl empowered to adopt
reasonable zoning measures designed towards preserving the wholesome and attractive
characteristics of their communities and the values of taxpayers’ properties.
 1 mile suburb: uses: residential, houses around the land
 They wanted to build a motel. Boarding house: allowed, similar to a hostel, looks like a house on
the outside
 All things they claimed were bad about motels could be regulated
 We don’t substitute our judgment for the corporate authorities, only do that if their decision was
arbitrary, capricious>>In this case, there was a diff between motels and boarding houses, so ct
deferred to municipality.
 WHO MAKES THE DECISION IS CRITICAL
 Zoning is valid

 Amendments to Zoning Ordinances

Amending the zoning ordinance is the most extreme method for landowner to obtain permission
for a presently non-permitted land use. Landowner can apply to amend map or text of zoning
ordinance.

A. Text Amendment
This changes the text of the zoning ordinance to permit or prohibit the use that was previously
prohibited/permitted. Generally applies to all parcels with the same classification (zoned for
that use).
 Legislative decision to amend an ordinance. More intense amendment
 What uses are permitted in each district: uses and, ht, area, and setbacks
B. Map Amendment
This permits you to do something that was not previously permitted on your property. If
granted, the parcel is rezoned and the owner can put the property to any use within the zone
restrictions. A leg decision that applies part of the text of the ordinance differently to a certain
area by amendment.
 What property is zoned as what district
C. Spot Zoning Problem
When enabling acts provide for a zoning amendment, this power may be abused. The usual
problem is spot zoning—a zoning amendment that delivers special private benefits (and no
public benefits) to a small, discrete parcel of land and which is not in conformity with the
comprehensive plan.
 Amendment not in accordance with the normal plan
D. Remember!
When like parcels are treated differently under an amendment to a zoning scheme, discuss
the issue of “spot zoning.” Point out that if the court believes that one of a few small parcels
have been singled out for treatment favorable to the owner(s), the court may conclude that
this constitutes illegal spot zoning, and them amendment will be struck down.
E. Overlay: Chinatown-residential and business areas, then there’s an overlay bc it has to
conform to look like Chinatown
Bartram v. Zoning Commission of City of Bridgeport
Zoning Amendments, Map Amendments
Facts: ∆ sought a zone change from residential to business. Several property owners opposed the
change. The commission approved the change and gave several reasons to meet the complaints (no
other shopping centers within a mile, only one house directly affected, Business No. 3 zone regulations
were designed to meet and alleviate congestion).
Rule:
 The vice of spot zoning lies in the fact that it singles out for special treatment a lot or small area
in a way that does not further such a plan.
 Commission might be guilty of spot zoning, but if one or the other it decides on facts according
a sufficient basis in the exercise of proper discretion, that it would serve the best interests of
the community as a whole to permit a use of a single territory, it would not be guilty of spot
zoning in any sense obnoxious to the law.
 Map amendment will be upheld if
 Done in furtherance of general plan
 Serves best interests of whole community
Notes:
 If the business is permitted in a residential zone pursuant to the general plan, it is not unlawful
unless it amounts to unreasonable or arbitrary decision. Because the commission decided on
sufficient factual basis and in the exercise of proper discretion that it would serve the best
interests of the community to permit use of a single lot in a different way from surrounding
territory, it is not guilty of spot zoning.
 The state, through the authority vested in zoning authorities, may regulate any business or the
use of any property in the interest of the public health, safety, or welfare, provided this be done
reasonably. To that extent, the public interest is supreme and the private interest must yield.
 The Court says that the petition doesn’t make a difference because this is a legislative decision
for the benefit of the larger community, and it’s a sound argument: if fulfills the comprehensive
plan. Nobody has a vested right in their neighbor’s zoning or rezoning. What individuals complain
about can be heard but is legally irrelevant. Spot zoning is only illegal when there is no rational
basis for it.
 The zoning authority best accomplishes the purposes of zoning. Their discretion is broad. Courts
can only review for abuse of that discretion.
 I want my property reclassified as a diff zone
 Non-conformity: grandfathered in.
 Legislative act that is for the benefit of the health, safety, and welfare of larger community.
(6) Zoning: Special Use, Variance, Nonconformities

 Special or Conditional Uses

In many local (and some state land use schemes), it is possible to obtain a change of use w/o
obtaining an amendment by means of a special or conditional use permit, or special exception.
This avoids the problem of spot zoning.

A. Generally
Typically, a special use permit must be obtained for such things as private schools, hospitals
and churches. Generally, an applicant is not entitled to a special use permit “as of right,” but
only in the discretion of the zoning board; however, usually no showing of “special hardship’
has to be made (like in variance). THERE NEEDS TO BE A SHOWING OF A BENEFIT TO
THE COMMUNITY AT LARGE!!
B. Legislative Decision
The special use exception reflects a legislative decision that while the particular use is
appropriate in the zone as a general matter, certain restrictions are needed to ensure that it
does not harm surrounding uses at its specific location.
C. Litigation
Where litigation ensues, the judicial attitude toward special use exceptions is much more
favorable than it is toward variances. Special use reflects a legislative decision that the use is
 permitted in the zone as a general matter. Many courts effectively presume that the applicant
is entitled to receive the exception.

Gorham v. Town of Cape Elizabeth

Special or Conditional Uses
Facts: Gorham applied at the zoning board of appeals for a conditional use permit to change his home
into a multi-unit dwelling. There were to be no changes to the exterior of the building or to the parking
facilities. The board denied his application stating that his unit would “adversely affect the value of
adjacent properties.” Gorham brought a complaint to the Superior Court.
Rule:
 In order for conditional use permit to be approved, it must not adversely affect the value of the
adjacent properties.
Notes:
 Whether an exceptional use under the ordinance would generally comply with the health, safety,
and welfare of the area is a legislative question that is not delegated to the board of appeals.
 Uses that are classified as exceptions or conditional uses may result from a legislative
determination that such uses will not ordinarily be detrimental or injurious to the neighborhood.
 Special uses often involve uses that are unpopular in residential districts: residential care facilities
and halfway houses. By relegating these to conditional or special use status, the authorities can
control their location in residential districts.
 The discretionary nature of such permits makes it difficult to attack the refusal of local authorities
to grant such permits in the event of successful local opposition to a particular facility at a
particular location.
 Seeking for a conditional use permit. Gorham is trying to show that it will not devalue to
properties around him. There was evidence that was presented to the contrary of what Gorham
was arguing. They have the basis to go either way. Both sides carried their obligation to present
evidence. Need to prove that there is no adverse affect in the value of adjacent properties. This
is the exercise of police power with respect to the use of land. It needs to be a land use reason if
it looks walks and talks about a single family house. It is a little specious to look at only the
added number of folks. The testimony in terms of reducing property values is a little weak. Have
to use what the trial court found. If it is an appeal from an administrative or quasi judicial decision
no new evidence. This menas that you need to know that you need to get everything in at that
initial hearing.
 When you act on a special use permit, for the city council when they grant a decision, what kind
of decision are they making?
o It sounds like quasi judicial manner. So a leg body can. That is what the city council
does. As a matter of consistency, the zoning board is not the body that grants conditional
use permits. Or they hear appeals from someone else.
 The Fair Housing Act may limit such municipal denials.

 Variance
Variances may alter the use to which property may be put (ex. commercial use in a residential
zone), or grant area or bulk concessions (ex. modify setback lines or height requirements). The
theory of variances is that they should be granted when compliance with the law would impose
such extreme burdens on the owner that application of the law might be unconstitutional or
otherwise invalid. A variance is an administrative safety-valve to avoid judicial determinations that
the zoning law is invalid as applied to the particular circumstances.

A. Requirements
Most states impose these requirements for a variance: (1) denial would result in unnecessary
hardship to the owner; (2) the need for the variance is caused by a problem unique to the
owner’s lot (not one shared by many lots in the area); and (3) the variance would not be
inconsistent with the overall purpose of the ordinance, or inconsistent with the general welfare
of the area.
 B. Distinguish From Special Use
Variances are more measurements but a gas station in a residential area is special use.
C. Standard Zoning Enabling Act
This has served as a model for zoning enabling acts in many JDXs, provides for a local
zoning board of appeals primarily for the purpose of granting such variances after a hearing,
but some JDXs converted such boards into hearing agencies only.
D. Variance Granted to Extent Needed
An applicant is entitled only to that degree of variance that will relieve him of his particular
hardship. If you only need 1 more foot on your property, you’re not going to get 12.
E. Conditions Attached
Conditions can be attached to variances by express or implied authority. They must relate to
the land and be reasonable. Conditions on fencing and lighting are common.
Surfrider Foundation v. Zoning Board of Appeals
 Facts: Hotel Asking for a Set Back.
 Rule: In order to be granted a variance an applicant must prove that they would be deprived of
the reasonable use of the applicant’s bland or building, the request is due to unique
circusmtances and not the general conditions in the neighborhood, so that reasonableness of
the neighborhood zoning is not drawn into question, and will not alter the essential character of
the locality nor be contrary to the intent and purpose of the zoning code.
 Notes:
o City charter- it is not an ordinance it is totally free. In the charter, the charter they are
collecting amendments. How is the charter effective- constitution gives each county the
ability to make the charter. In HI it comes through referendum. Eventually the
amendment comes to the people, at the next scheduled general election. These are
charter mandated standards. The standards are as you have suggested. You have them
set out. You cannot use your land reasonably. Unique circumstnaces. If everyone on
the block or street has a 6 foot side yard. You would be hard pressed to show. The
essential character of the neighborhood. IF you are permitted to bring a single family
detached house.
o The variance is an escape valve when the zoning ordiance prevents someone from doing
something that is unique. Then you are supposed to get a variance. Who granted this
variance.
o Approved by the director of planning and permitting. The arguments are that planners
should not worry about permitting.
o A question that you might fundamentally ask yourself is which one are you most
comfortable with. 4 levels before you are done. This took almost a decade to decide.
At every level the landowner won.
o It gets to the SC
 We now look at the variance itself. We are talking about a setback and a height
variance. The parties won before applying these standards. To reverse or
change the ct needs to find that one of the requirements were not fulfilled or
there was a legal mistake. The court should support whichever side on of the
finders made. We have a uniform decision in favor of the landowner all the way
up.
 Reasonable use of land
o You have a hotel it is a 7 story hotel. Hard to meet standard
because it is already there
  Unique Circumstances
o The state had promised to fill in all of the ocean are and did not.
Hardship was that state violated agreement, and if they had it
they would not have had to worry. We are in the Waikiki
Special District. This is the premier one in terms of full sets of
regulations. They have special controls.
 Character of Neighborhood
o We have a hotels in the area. The only objector was the Hyatt
who was going to lose ocean views for three quarters of their
building.
o Ct says you are violating the purpose of the design district. The
purpose of the design district. The fact of the matter is that
Callies have never seen a decision. The purpose of the district is
not relevant to the variance.
 THERE WAS NO NEED TO GO TO THE OTHER 2. The note that the ct does not
spend a lot of time on the issue, which it should have won all the way up, had
the parties not met their burden. It was a unique party. The court should have
left that alone. In this case, the ct looked at it and said that it did not pass the
smell test.
 Nonconformities
When a zoning ordinance is enacted or made more stringent, the pre-existing uses that are now
banned by the ordinance are called nonconforming uses. Virtually all ordinances either: (1) grant
a nonconforming user a substantial period within which he may continue his use; or (2) let him
continue that use indefinitely.
A. Constitutional Issue
Probably it would be a violation of an owner’s due process or other constitutional rights for
him not to be given at least a substantial period within which to phase out the non-conforming
use.
B. Amortization
If the ordinance does give an owner a substantial period to phase out his use (called an “amortization”
provision), most courts hold that no violation of the owner

(7) Special Controls—Aesthetics & Historic Preservation

 Aesthetic Preservation
A recent review of judicial views on aesthetic regulation finds that all states today allow the use of
aesthetic concerns in some fashion, and that almost half the states accept aesthetics alone as a
basis for regulation. The remaining states accept the use of aesthetics with other factors. Some of
these have held that the use of aesthetic concerns alone is not appropriate, but a number appear
to be moving away from that position. (See Reid)

A. Architectural Review
Typically, an architectural review board conditions a land use permit of some kind (ex.
planning approval, building permit) on (1) the conformity of the proposed structure to the
existing character of the neighborhood, and (2) the likelihood that the proposed structure will
not cause substantial depreciation of neighboring property values.
B. Unconstitutionally Vague?
 Some courts have ruled that standards directing a board o determine whether a proposed
house is “inappropriate” or “incompatible” w/ surrounding property are unconstitutionally
vague.
C. First Amendment violations
Does architecture constitute protected speech? Washington court found that church building
itself constituted speech b/c when there is “an intent to convey a particularized message” and
a great likelihood that the message would be understood by those who view it, that
constitutes speech w/in the meaning of the First Amendment.

Reid v. Architectural Board of Review of City of Cleveland Heights

Aesthetic Preservation
Facts: π wanted to build a one-story house w/ a 7 foot wall around it in a multiple story community. The
Architectural Board of Review (administrative body acting in a quasi-judicial manner) denied her request
b/c it does not conform to the character of other houses in the area and therefore does not maintain the
high character of community development.
Rule:
 An ordinance designed to protect values and to maintain a high character of community
development is in the public interest and contributes to the general welfare.
 Aesthetic conditions alone are insufficient to support the invocation of police power, although if
a regulation finds a reasonable justification in serving a generally recognized ground for the
exercise of that power, the fact that esthetic considerations play a part in its adoption does not
affect its validity.
Notes:
 Court held that the ordinance was a valid exercise of the police power and the Board did not
abuse its discretion in reviewing the plain.
 The exercise of authority requires standards, but in a place of fixed standards for review the court
has substituted procedure and process by relying on the expertise of the architects on the Board.
 The ordinance is a constitutional exercise of the police power by the City Council and therefore
valid because the criteria and standards of the ordinance are definite as to the objective to be
attained (protect property; maintain the high character of community development; protect real
estate from impairment or destruction of value); instructive as to the method by which the matters
specified are to be adjudged (proper architectural principles); and informative as to the bounds
within which it is to exercise these powers (for the accomplishment of said purposes only).
 Because Cleveland Heights is a well-regulated and carefully groomed community, primarily
residential in character, an ordinance designed to protect property values and to maintain a high
character of community development is therefore in the public interest and contributes to the
general welfare. Moreover, the employment of architects to apply their knowledge and experience
in helping to maintain the high standards of the community serves the public good.
 Aesthetic conditions alone are insufficient to support the invocation of the police power, although
if a regulation finds a reasonable justification in serving a generally recognized ground for the
exercise of that power, the fact that aesthetic considerations play a part in its adoption does not
affect its validity.
 Dissent: There is no uniformity in this neighborhood and the Board decided purely on aesthetics.
They probably all conform to proper architectural design principles. There is no fixed style in this
neighborhood! The Board is probably just trying to protect property values. The dissent thinks the
Board’s decision is unreasonable, arbitrary, and capricious.

Penn Central Transportation Co. v. City of New York

Historic Preservation
Notes: (Looking back in current context)
 The historic preservation ordinance operates under a state enabling statute.
 After Grand Central is designed as a historic landmark, they must then (1) maintain the building
and (2) go to the commission with any proposal for a change.
 The commission said no to placing an office building on top of Grand Central, SCOTUS says this
is valid b/c there is a comprehensive plan in NY to preserve structures of historic interest.
(8) Subdivision, Planning, & Land Development Conditions

 Subdivision Regulation
Towns often extensively regulate the process of subdivision. This is the process of dividing a
parcel into two or more smaller ones, for resale to different purchasers. The subdivision process
is a mechanism for implementing a general plan and making sure that there is compliance with
the plan.

A. Plat Acts
The subdivision ordinance developed from so-called “plat acts” which required that no parcels
be divided and sold without the filing of a plat—a drawing of the parcel showing the division or
divisions into which it had been carved.
B. Enabled By Statute
A subdivision code is enabled by statute and is based on the exercise of police power for the
health, safety and welfare of the people. It requires land developers to comply with the
subdivision code—they have to provide water, roads, sewers, maybe parks etc.. and get the
okay to proceed w/ a subdivision.
C. Subdivision Approval Process
There are two steps to this process: the (1) tentative map OR PRELIMINARY PLAT and (2)
final map OR FINAL PLAT. (See Youngblood)

1. Tentative Map (Preliminary Map/Plat/Plan)

A preliminary plat is first submitted to the local plan commission for review. After review by
appropriate officials, it is either approved, approved with modifications, or rejected.
2 Interim Step: approved, approved with modifications, or rejected
 If approved: RIGHT IS VESTED
 If approved with conditions developer will perform conditions and submit final
plan for approval.
3. Final Map (Final Plat/Plan)
A more detailed final plat is then submitted, similarly viewed, and if accepted, sent to the city
or county council for formal approval, execution, and recording. The restrictions and
conditions so recorded thus become burdens that “run with the land”; that is, they
become binding on later purchasers of the lot.

Youngblood v. Board of Supervisors of SD County

Subdivision, Planning
Facts: Developer filed application for tentative subdivision map, County Planning Commission approved
and recommended conditions, Board of Supervisors approved tentative map subject to condition, county
amended the general plan (2 acre lots instead of 1 acre lots), county approved the final subdivision map
that did not conform to the general plan. While appeal was pending, the Board rezoned the subdivision so
that it conformed to the general plan. The remaining issue related to the Board’s approval of the tentative
and final maps.
Rule:
 The date of approval of the tentative map is most crucial. Once the tentative map is approved,
the developer must often expend substantial sums to comply with the conditions attached to the
tentative approval.
Notes:
 This case represents the usual process used to regulate the subdivision process.
 The Board did not abuse its discretion in approving the tentative subdivision map. The Board
approved the tentative map on the condition that the developer apply for rezoning, and the
developer met this condition. The approval of a tentative map subject to conditions is nonetheless
an approval for the purpose of determining that map’s consistency with the general plan. Because
the board conditionally approved the tentative subdivision map on 12/10/1974, the features of that
map must be measured against the general plan in effect on that date.
  These condition expenditures will result in improvements consistent with the proposed
subdivision but often inconsistent with alternative uses of the land. It is only fair to the developer
and to the public interest to require the governing body to render its discretionary decision
whether and under what conditions to approve the proposed subdivision when it acts on the
tentative map.
 Approval of the final map is a ministerial act once it is in substantial compliance with the
previously approved tentative map and conditions. Because the Board properly approved the
tentative map, the Board acted properly in ministerially approving the final map once the
conditions were met.
 Subdivision process and what a subdivision does or doesn’t do
 Use proposed for the prop: housing: single-family detached. Classic use of land in a residential
area.
 In order to obtain building permit, it involves the subdivision process. Must provide 1) tentative
subdivision map (land development conditions may apply) 2) final map (conforms to tentative
map)
 Who looks at the map? Board of supervisors of Sand Diego County- legislative body, same as a
county or city council. A legislative body makes decision. Can a leg body make a non-leg
decision? Don’t need to defer to leg body unless they’re making a leg decision.
 Subdiision n approval is NOT A LEGISLATIVE ACT=if you amend the ordinance or create an
ordinance=LEG ACT, application of the ordinance to a subdivision= NOT
 Neighbors aren’t happy bc they’re getting to build on 1 acre lots instead of newly required 2
acres. Basis for neighbors=new general plan passed by the county. >>>WHICH IS
APPLICABLE? THE CT SAYS THE TENTATIVE MAP IS APPLICABLE. >>
 Zoning only conveys the ability to use right (under police power), doesn’t give right to construct
single family detached if there is a subdivision ordinance in place. To comply you need to submit
a tentative/prelim plat
 Ct must comply with VESTED RIGHT-everything that includes and approved in the sketch plat
(prelim plat) if it’s in final plat. Prelim plat is a detailed doc
 Public conditions, police power

 Land Development Conditions

Land development conditions are inappropriate for zoning. Conditions are legal only b/c land
development will cause a public facility need or some problem that needs to be alleviated. There
can be no conditions during rezoning, only during land development. Whether the legality of
conditions are evaluated with the Nollan/Dolan test.
 What kinds of conditions can be attached to a permit to develop?

A. Nexus (Nollan)
There must be a nexus which connects what the agency is trying to fix with the condition
placed on the land development.
B. Proportionality (Dolan)
The court must also look at the nature and extent to which the particular condition will affect
what the development is going to cause and whether the condition is proportional to what
the owners is going to do. ‘’
Land Develipment conditions are not supposed to attach to a change in zoning
o Dedication: Gov requires the developer to dedicate land to the gov as a condition on the permit.
o Exaction: when the gov requires the developer to pay a certain amount to support a public facility
infrastructure as a condition for the permit. This occurs when the gov needs a large expensive
facility that could be burdened upon a single developer.
o Impact fee/In-lieu fee: Gov gives developer a choice to either build certain infrastructure itself or
pary a fee in lieu of infrastructure. In lieu fees often posed at the END of development, but not
major difference between dedication and impact both are controls on land use development.

Nollan v. CA Coastal Commission

Land Development Conditions as an Extension of Subdivision Requirements
Facts: P=Nollan, D=California Coast Commission. π wants to tear down their bungalow and build a bigger
house, but CCC recommended that the permit be conditioned on allowing a public easement between the
mean high tide and P’s seawall. CCC that π’s new house will impede the view of the shoreline and pose a
psychological barrier to the beach for public. There is not connection betw what the gov says it wants and
the condition its imposing: increasing lateral easement across property in front of beach HAS NOT
CONNECTION to increasing visual access to beach. There is NO NEXUS and so its unconstitutional to
require the condition.
Rule:
 If a regulatory condition is imposed on a development permit, that condition must substantially
advance the same governmental purpose that refusing the permit would serve or else the action
will constitute a taking and require just compensation.
 There must be a NEXUS between the condition imposed by the government and the original
purpose of the building restriction.
Notes:
 There is no connection between what the government says it wants and the condition it is
imposing. There is no nexus and so it is unconstitutional to require the condition. Increasing the
lateral easement across property in front of the beach has no connection to increasing visual
access to the beach.
 The lack of nexus between the condition and original purpose of the building restriction converts
that purpose to something other than what it was. The purpose then becomes the obtaining of an
easement to serve some valid government purpose, but without payment of compensation.
 It is an unconstitutional taking if the condition substituted for the prohibition utterly fails to further
the end advanced as the justification for the prohibition.
 If CA wants an easement across Nollans’ property, it must pay for it.
 For the Nollan/Dolan test—if there is no nexus, you don’t need to even move and discuss
proportionality—threshold.
 Public already has public beach, State wants ADDITIONAL ACCESS on Nollan’s prop
 Could the State take that land? Yes, police power, but they need to compensate for taking an
interest in prop
 Why does the CCC want this particular prop? Want the public to know there’s a beach there. >>
Ct says there’s no connection. There are already people walking on the beach. How does that
affect their stated purpose to show there’s a public beach there?
 Ct: height limitation of house, width restriction, viewing area=all would increase the visibility.
 Must be a RATIONAL NEXUS>>no nexus=no condition
 Not a leg decision, and decision based on interest of property

Dolan v. City of Tigard

Special or Conditional Uses
Facts: π wants to expand her plumbing and electric supply store and parking lot. Her proposed expansion
and intensified use are consistent with the City’s zoning scheme, but b/c P’s property is in the Fanno
Creek floodplain, the City Planning Commission requires π as a condition to dedicate the portion w/in the
floodplain to the City for improvement of a storm drainage system and an additional 15 foot strip of land
as a pedestrian/bicycle pathway.
Rule:
 If a nexus exists between the legitimate state interest and the condition imposed, then the city
must show a rough proportionality between the required dedication and the impact of the
proposed development.
Notes:
 Government not require a person to give up a constitutional right (to receive just compensation
where property is taken for a public use) in exchange for a discretionary benefit conferred by
government where the property sought has little or no relationship to the benefit.
 No precise mathematical calculation is required, but the City must make some sort of
individualized determination that the required dedication is related both in nature and extent to the
impact of the proposed development. The City here not only wanted π not to build in the
floodplain, it also wanted π to dedicate her property for the public greenway.
  BUT, the City never said why a public greenway was required in the interest of flood control. And
yet through the dedication, Dolan loses the ability to exclude others. Because the City wants to
impose a permanent recreational easement on π’s property, π would lose all rights to regulate
the time in which the public entered onto the greenway, regardless of any interference it might
pose w/ her retail store. Thus, there is no reasonable relationship between the floodplain
easement and π’s proposed new building.
 As for the pathway, the City has not demonstrated that the additional number of vehicles
generated by Dolan’s development reasonably relate to the City’s requirement for a dedication of
the pathway easement.
 The city’s goals of reducing flooding hazards & traffic congestion are laudable, but there are limits
to how this may be done. A strong public desire to improve the public condition will not warrant
achieving the desire by a shorter cut than the constitutional way of paying for the change.
 Gov’s reasons: Prevention of flooding and reduction of traffic=legit gov interest: public health and
safety
 Is there is connection or nexus betw a bike path and traffic safety? Yes. Is there a connection
betw land and protection from flooding? Yes.= CT SAYS THERE IS A NEXUS
 HOWEVER, this case fails to meet the test: ROUGH PROPORTIONALITY: show relationship
betw what land owner is doing and public interest.
 Ex: 5 bed homes>>condition: dedicate something to schools=PROPORTIONAL vs. condition:
dedicate 4 acres for a school=NOT PROPORTIONAL>>not proportional=doesn’t work.
 Not leg imposed, and involves interest in prop.

Commercial Builders of Northern CA v. Sacramento

Special or Conditional Uses, Nexus, Proportionality
Facts: County of Sacramento hired a consulting firm to study the need for low-income housing, the effect
of nonresidential development on the demand for such housing, and the appropriateness of exacting fees
in conjunction with such development to pay for such housing. Based on results from study, City enacted
the Housing Trust Fund, imposing a fee in connection with issuance of permits for nonresidential
development of the type that will generate jobs. The fees are to assist in the financing of low-income
housing. Appellants (commercial developers) brought an action challenging Sacramento’s city ordinance
on the ground the required fees constituted an unconstitutional taking. Trial ct: summary judgment for city.
Affirmed.
Rule:
 A condition planed upon the granting of a permit to develop land may constitute an
impermissible taking only where the condition lacked any rational relationship to the project for
which the permit was sought.
 Where there is no evidence of a nexus between the development and the problem that the
exaction seeks to address, the exaction cannot be upheld.
Notes:
 Summary judgment in favor of the city affirmed. The court ruled that the ordinance was
sufficiently related to the legitimate purpose it sought to achieve. The court ruled that the burden
assessed against appellants bore a rational relationship to a public cost closely associated with
nonresidential development.
 The nexus between the fee provision at issue, designed to further the city’s legitimate interest in
housing, and the burdens caused by commercial development was sufficient to pass
constitutional muster.
 A purely financial exaction will not constitute a taking if it is made for the purpose of paying a
social cost that is reasonably related to the activity against which the fee is assessed.
 No residential prop in the case
 Fee was for affordable housing
 1) whose burden was it make case for fee? County’s burden, on the gov to show why fees should
apply to prop (clear from Dollan, clear from this case)
 Study: how your development is going to drive the need for affordable housing.
 What if it’s legis imposed on every single residential development?
  Callies: 1) Ct will revisit public purpose, public use, and eminent domain bc everything has been
messed up. 2) Ct needs to revisit whether disparate impact on a class of people is sufficient to
trigger Fed Housing Act (what if only thing is there is a disparate impact on a protected class?-no
language in K) 3) legis v. non-leg in imposing 4) regulatory takings-what’s the relevant parcel.
Total or partial.

Save Sunset Beach Coalition v. Obayashi Corp

Obayashi wants to develop land in a zone where STATE STATUTE SAYS: that limits dwelling use to
“farm dwelling, employee housing, farm buildings, or activity or uses related to farming and animal
husbandry.” Obayashi argues that Lihi Lani project falls under the definition of farm welling. Save Sunset
Beach argues that a permitted use under the City’s county district exceeds the state ag district bc it allows
the use of a “dwelling, detached, one-family” and requires no special permit for such use.
HELD: There is no evidence that development would conflict with the most restrictive use as between
county zoning and State ag district.
RULE: State districting scheme prevails over the City’s land use ordinance. Thus any conflict betw the
State provisions and the county zoning ordinances is resolved IN FAVOR OF THE STATE.

Koontz
In lieu fees:
What’s left? What about leg imposed fees? Cts are split. Doesn’t apply to leg imposed fees bc part of the
leg. Justice Thomas: Leg can take prop, the Ct will eventually decide that issue. Ct is concerned about
issue of remedy. What’s the remedy going to be? How does the prop owner hold? How does Florida law
apply?
Disgraceful part of dissent: we don’t think local gov and discern between impact fees (police power to fix
infrastructure issues) and taxes. Callies: there is no confusion, it’s a red herring. Area of impact fees and
impact dedications, and requirements of nexus of proportionality>>where does rubber meet the road?
Housing exactions.
PART III: ENVIRONMENTAL PROTECTION

(9) Private Ownership

 Environmental Protection
Entails restriction on outright ownership & use of the land, water, air and other components of our
environment. As part of the human environment, humans themselves must be protected from
oppression from ownership claims by others.

A. Rights to Water
Water rights in rivers, lakes, streams, & other watercourses are allocated through 2 basic
systems. The riparian system dominates in eastern states where water is usually abundant;
the prior appropriation system prevails in western states, where water is typically scarce.
Difference is fundamental: riparian system based on location of land while prior appropriation
system based on first use of water.

1. Riparian System
Rights to water are afforded to owners of land abutting or touching a stream or lake. Only
riparian owners have riparian rights. There are two theories of riparian rights: (1) natural
flow and (2) reasonable use.

i. Natural Flow Theory

a. The riparian owner is entitled to have the water flow maintained in its natural
state w/ respect to quality & quantity.
b. Landowners may use the water for natural purposes or for extraordinary needs
when there is not material effect on the water & the use is in connection with the
riparian land.
ii. Reasonable Use Theory
 a. Allows for full use of the watercourse in any way that is beneficial to the riparian
owner provided that it doesn’t unreasonably interfere w/ the beneficial use of
others. (See Evans).
b. There may be an alteration of the natural state of the water if the use is
reasonable & there is no material effect on the reasonable use of another.
c. Courts are split as to whether it’s reasonable to use riparian rights water for
parcels of land that are connected to riparian land.

Evans v. Merriweather
Rights to Water, Riparian System, Reasonable Use
Facts: Evans (∆) bought land and built a steam mill that depended on a branch of water and well nearby.
Adjacent mill neighbors (Smith & Baker) sold their mill to Merriweather (∆). There was a drought and the
branch could not supply both mills w/ water. ∆’s workers diverted water through a dam, and adversely
affected π’s mill operations (went dry).
Rule:
 There may be, and there must be, of that which is common to all, a reasonable use. The true test
of the principle and extent of the use is, whether it is to the injury of the proprietors or not.

 There may be diminution in quantity, or a retardation or acceleration of the natural current,

indispensable for the general and valuable use of the water, perfectly consistent w/ the use of
the common right. The diminution, retardation, or acceleration, not positively and sensibly
injurious, by diminishing the value of the common right is an implied element in the right of
using the stream at all.
Holding: ∆ obstructed the water by a dam and diverted the whole into his well. This diversion was clearly
illegal.
Notes:
 All through whose land a naviagable water naturally flows may enjoy the privilege of it. Property in
water therefore consists not of the water itself, but of its use. But a riparian owner user must not
cause injury to any other riparian user.
 How must each user may use is a jury question, but in this case Evans diverted all the water into
his well. That is clearly illegal.
 Private ownership of water, difficult to possess.
 What rights do either of these parties have over the flow of water? Riparian rights: rights to water
adjacent to their land.
 Ariyoshi: limited riparian right
 Limitations on the riparian rights user: if you own land adjacent to waterway you have certain
rights, however you can’t harm other users
 Almost everything now is subject to a water code: in flowing held by State: holds it in public trust.
So one needs to get permission from State Water Board to use water for any purpose, especially
for commercial purpose. There are all kinds of rights connected with PTD: minimum stream flows,
lo’i kalo>>stream flows need to be maintained.
 What standard do you apply? What’s reasonable? See Yonadi

2. Prior Appropriation System

i. Water rights are obtained first come, first served.
ii. Appropriators do NOT have to be riparian owners.
iii. The water may only be appropriated for beneficial uses. Beneficial use has 2
dimensions (1) purpose & (2) quantity.
a. Purpose: Water may be taken only for a use that has a beneficial purpose (ex.
irrigation, recreation).
b. Quantity: In most states, only the quantity of water necessary for the beneficial
use may be diverted.
iv. HI has abandoned this rule in favor of riparian rights.
3. Diffused Surface Water
 This type is al surface water that is not confined in lakes, rivers, streams or other
watercourses. Basically, it is water that has no channel and just passes over land.
Problems arise from there being too much water.
i. Common Enemy Rule: Surface water is a common enemy. An owner was permitted
to repel water rom his land in any manner, w/o liability for any resulting injury to
others.
ii. Civil Law Rule: An owner could not interfere w/ the natural drainage of diffused water.
iii. Reasonableness of Use Rule: (See Yonadi)
a. Each possessor is allowed to make reasonable use of his land, even though the
flow of water is altered thereby and causes some harm to others.
b. Liability is incurred only when the possessor’s use of his land is unreasonable
and damage from surface water is caused thereby. To determine what is
reasonable requires a balancing of interests.
c. Modern rule in the US. HI has adopted this rule.

Yonadi v. Homestead Country Homes

Rights to Water, Diffused Surface Water
Facts: Yonadi (π) owns a golf course/restaurant on the south side of a 40-acre tract. Homestead (∆) built
a new housing development, and increased the surface runoff water 3.5 times. In times of heavy rain,
excess water produced flood conditions on π’s property.
Rule:
 Common Enemy Rule: Neither the diversion nor the altered transmission, repulsion, or retention
of surface water gives rise to an actionable injury. He who improves or alters land is not
subjected to liability b/c of the consequences of his acts upon the flow of surface water.

 Civil Law Rule: The proprietor of the higher land has a natural servitude in the lower land to
accommodate the natural flow (& no more than the natural flow) of surface water from his land.
This servitude, the proprietor of the lowland cannot obstruct.

 Reasonable Rule: A person altering his land is placed under a duty in connection w/ surface
water not to act unreasonably under the circumstances.
Holding: Where surface water is concentrated through a drain or other artificial means & is conducted to
some place substantially where it otherwise would have flowed (and now it’s just pooling a lot more), the
∆ will not be liable.
Notes:
 Generally, diversion or transmission of surface water does not give rise to an actionable injury.
Filling of land that changes the direction of flow of surface water is not actionable.
 An exception arises where ∆ interferes w/ the flow of surface water by means of drains, ditches,
or other artificial contrivances to transmit water. ∆ then renders himself absolutely liable if he
causes by casts it on π’s lands away from where it naturally would have plowed.
 Public policy favors the development of land. Building in an urban locality is regarded as such
high utility that in the absence of exceptional circumstances, the resultant invasion of another’s
enjoyment of lands through surface waters is not actionable.
 30 of the 40 acres still drain to the same place, so those acres are not actionable. Liability for the
remaining 10 acres must be established on remand.
 Problem with runoff
 Reasonable use rule is the standard, must consider effect on others land.
 What do we do with underground water? You have rights to it (like minerals, coal)-go in and
extract it. Subsurface water- can sink a well and take your water, however, some water flows in
underground streams, can’t take that
 Law of subsidence- if water is withdrawn, it will cause land to collapse- issues of how to treat
water that will cause subsidence.

4. Groundwater
 This is simply water located under the land surface. Two categories: (1) underground
streams (water flowing underground in a defined channel); (2) percolating groundwater
(dispersed water that trickles or percolates through permeable subsurface layers).
 Private Ownership of Natural Resources Cont.

A. Rights To Oil & Gas

Until the 20th century it was widely accepted that, a landowner owned everything from the
heavens above his land to the center of the earth below it. When applied to minerals, this
meant that the owner of a tract of land owned whatever lay below the surface. However, the
fugacious nature of oil and gas posed special problems. Oil and gas were constantly in
motion.

Barnard v. Monongahela Natural Gas Co.

Rights To Gas
Facts: Per π’s lease, the ∆ was to pay to the respective lessors a fixed sum per year for the gas from
each well drilled on their or his form so long as it was sold. ∆ drilled a well on the James B. Barnard farm
(adjacent to π’s lot). ∆ then drilled a well on π’s property. The π’s well failed to produce any gas (b/c it
was already taken from the other well).
Rule:
 Every landowner or his lessee may locate his wells wherever he pleases regardless of the
interests of others. He may distribute them over the whole farm or locate them only on one part
of it. He may crowd the adjoining farms so as to enable him to draw the oil and gas from them.
Notes:
 Oil and gas are fugitive in nature and will by reason of their inherent pressure seek any opening
from the earth’s surface that may reach the sand where they are confined.
 The early American law of oil and gas was rooted in the “capture theory” developed in wild animal
cases like Pierson.
 Recognizing the fugitive nature of oil and gas, courts found it useful to draw analogy between
these minerals and wild animals on one hand and with water on the other.
 Until it’s reduced to possession it belongs to anybody
Sygenta Seeds v. County of Kauai
Facts: The problem is that Kauai County has enacted ordinance 960 that requires sygenta seeds and
other plaintiffs to abide by various rules and disclosures. The first part of the ordinance requires
pesticide buffer zones. Companies cause some of their problems by being a little to liberal with the use
of pesticides. This was about the spraying of pesticdes. Found by an environmental impact statement.
What power is being exercised according to the county. The power comes from the state. A key point
to remember is that local govs have no inherent police power. If the countys get any power at all it
needs to be delegated to them. There is no inherent power to regulate, but was there power to
regulate agricultural uses. Do the counties have any authority at all over agricultural uses. The state
cons does that. There are statutes which grant the power of the countys to regulate in agricultural
areas.

Rule: Each county shall have the power to enact ordinances deemed necessary to protect health, life,
and property, and to preserve the order and security of the county and its inhabitants on any subject or
matter not inconsistent with, or tending to defeat, the intent of any state statute where the statute does
not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the
state.

Rationale (Callies): The state already has laws on the books. The state statutues does not explicitly talk
about prememption. If you mean to control something say so. Could the state pass the statute
regulating GMO’s it does has the power. IT could also grant the authority to the counties. It has done
neither, so we are dealing with the difficult area of implied preemption. And underwhat circusmtances
can preemption be applied. They found that the state stautues had enough concerning police power.
The state stautute with respect to preemption occupies the field, leaving no room for the counties to
act.

Private Ownership 2

 Private Ownership of Natural Resources Cont.

A. Rights To Land
Property rights in regard to land are normally evidenced by a written document known as a
patent or a deed. The patent or deed sets out the type of “title” held by the “record owner.”

Plume v. Seward & Thompson

Possession, Rights To Land
Facts: Plume bought land from Covillaud (didn’t have title but sold land) and brought an action of
ejectment against S&T. S&T claimed that Covillaud never had legal title and thus could not transfer to
Plume
Rule:
 There must be actual occupation of the land as opposed to mere assertion of title and casual
acts of ownership. Occupation of a portion of a tract of land and marking the extent and
boundaries of the tract carries possession to the whole tract.
 You can only get as much as the person who sold it could give up.
Notes:
 Falling of trees and building of a fence have been held sufficient acts of an occupying party to
have possession of land so enclosed, but enclosure is not required where a party is in possession
of land marked by distinct monuments of boundary, whether those make a natural or artificial
enclosure.
 In many cases, marking the boundaries of one’s land operates as notice and carries possession
of the whole tract. The character of the markings depends on the locality.
 American law has traditionally only recognized those claims traceable back to a sovereign grant.
Even someone who establishes title through adverse possession must have adversely possessed
against a title owner who can trace title back to the sovereign before title will be granted.
 Aboriginal peoples generally did not have ability to transfer legal interest to private parties. In
1790, Congress passed the Indian Non-Intercourse Act, which disallowed the sale of Indian
Lands unless the sale was through the U.S. Government. Thus, states that had acquired any
Indian lands from Indian tribes after 1790 were sued in the 20th century and recovered damages.
 Bottom of navigable waterways cannot be owned even with the sovereign’s permission. The
Public Trust Doctrine obligates the sovereign to retain control of these assets for the benefit of the
public as a whole.
 Neither party has record title
 Title search: involves finding somebody who got an original grant from some sov entity (state gov,
fed gov, preovertrhow royal family who held title)
 Ct: remanded for further trial, what needs to be found at trial? Possession and occupancy.
Transfer by predecessor in title, did Covillaud have sufficent right title in interest to transfer? If
that can be shown then Plume will win.
 What kind of occupancy do you have to show?
 Some evidence of claim of ownership (fencing, running cattle across, planting
 Can’t convey what you don’t have- gov entities try to convey-in respect to easements

B. Rights To Persons
African-American slavery existed as a form of American property from the 17 th century until
the ratification of the 13th Amendment in 1865. The precise nature of slave property,
particularly in states where slavery was not permitted, was a very complicated question that
 went to the heart of what it meant to identify an object—even a human being—with respect to
which law would recognize property rights.

Commonwealth v. Aves
Rights To Persons
Facts: Med (8 year old slave girl) accompanied ∆ on a trip to MA from LA. In LA, slavery was established
by law. Slavery was abolished in MA. A petition for habeas corpus was brought on behalf of Med, which
alleged that ∆ unlawfully restrained the child of her liberty.
Rule:
 The law arising from the comity of nations cannot apply to slavery.
Notes:
 The writ of habeas corpus was granted b/c the child was immediately emancipated upon her
arrival in MA. Court stated that slavery was contrary to natural right, but not the law of nations. As
such, the court refused to apply comity to the slavery laws of LA, stating that such laws were only
effective in the territory of the slave state.
 However, the court cautioned that it was not called upon to address the issue of whether the child
was to remain free upon a return to LA.
 Under current law, a living individual can sell some parts of his or her body, particularly if they can
be replenished and do not harm the health of the vendor—hair and blood are the two most
obvious examples—but the individual is barred by law from selling organs, including those like
kidneys, eyes, and the spleen, the removal of which are ordinarily not fatal.
 Question: someone’s prop in one state, and not prop in another>>recognition of the prop rights in
another state?
 How does a state get out of the obligation to recognize another state’s law? (Ex: same sex
marriage)
 The state decides NOT to recognize the prop right, however recognized the principle that prop
rights follow owner.
 Natural law: use in any context of natural law. Whose natural law?

 Rights To The Use of Natural Resources

A. Vegetation
Even once acquired, property rights may be limited by the social context involved. The right to
use one’s land in regard to different assets—including vegetation, water, and sunlight—may
be restricted for good social reasons, particularly to prevent harm to others.

Whitesell v. Houlton
Vegetation, Banyan Tree
Facts: ∆’s banyan tree overhangs onto π’s property and the two lane street fronting both properties. Π
asked ∆ to cut the intruding branches but ∆ refused. Branches caused damage to π’s roof and van. Π
later hired a professional tree trimmer to cut the branches back to ∆’s property line.
Rule:
 Overhanging branches or protruding roots constitute a nuisance only when they actually
cause, or there is imminent danger of them causing, sensible harm to property other than plant
life, in ways other than by casting shade or dropping leaves, flowers, or fruit. (Modified VA rule)
Notes:
 If any owner knows or should know that his tree constitutes a danger, he is liable if it causes
personal injury or property damage on or off his property. Thus, he is bound to take action to
remove the danger before damage or further damage occurs.
 The damaged or endangered neighbor may require the tree owner to pay for damages and cut
back the branches/roots. If not done w/in a reasonable time, the damaged/endangered neighbor
may cut the branches/roots at the tree owner’s expense.
  A landowner may always, at his own expense, cut away to his own property line above or below
ground any part of the neighbor’s trees or other plant life.
 If the only thing damaged is the garden- plant life doesn’t count- so D wouldn’t be liable
 Hypo: selling 40 banana plants, sell bananas 2 months out of yr, if you make it a commercial
enterpirse, no longer a garden. Who pays when you have to recover?
 You’re entitled as a prop owner within very narrow limits to cut off anything that invades your prop
 Can’t undertake a self-help that is likely to damage or destroy neighbors property. Usually
common driveway situation.

B. Sunlight
There are three views on whether sunlight as a property issue: (1) Ancient Lights; (2)
Majority; and (3) Minority.

1. Doctrine of Ancient Lights

Under this English doctrine, if a landowner had received sunlight across adjoining property for
a specified period of time, the landowner was entitled to continue to receive unobstructed
access to sunlight across the adjoining property. The landowner acquired a negative
prescriptive easement and could prevent the adjoining landowner from obstructing
access to light. This doctrine has been repudiated by US courts.
2. Majority
A property owner has no right to the free flow of sunlight and air across an adjoining property.
Thus, there can be no claim or nuisance for obstruction of light.
3. Minority
Obstruction of sunlight can be recognized as a basis for a nuisance claim.
4. Reasonable Use Doctrine
An owner of land does not have an absolute or unlimited right to use the land in a way, which
injures the rights of others. When on landowner’s use of his property unreasonably
interferes with another’s enjoyment of his own property, that use is a private nuisance.
5. Spite Fence Doctrine
The malicious obstruction of sunlight is an actionable nuisance
6. Solar Energy
Where a landowner uses sunlight as a source of energy, court will be more willing to hold that
he has a protectable prop interest.

Solar rights were usually not recognized for 3 reasons.

o Value was for aesthetic reasons
o Favor development
o Use/damage.

Prah v. Maretti
Sunlight
Facts: π owns the first residence built in the subdivision, and his house has solar panels on the roof. ∆
purchases the lot immediately south and commences planning. Π tells ∆ that ∆’s house will substantially
and adversely affect the integrity of π’s system and cause damage to the system. ∆ began constructing
anyway. Issue: is this private nuisance?
Rule:
 The obstruction of access to light might be found under certain circumstances to constitute a
nuisance. The result in each situation will depend on whether the conduct complained of is
unreasonable.
Notes:
 An easement to light and air over adjacent property cannot be created or acquired by prescription
and is not recognized as an easement by implication.
 A landowner’s compliance with the zoning laws does not automatically bar a nuisance claim.
Compliance with the law is not the controlling factor, though it is, of course, entitled to some
weight.
  This court previously was reluctant to protect access to sunlight b/c (1) landowners had a right to
use their property as they wished as long as they did not cause physical damage to a neighbor,
(2) the loss of sunlight was a personal annoyance at most, and (3) there was a significant interest
in not restricting or impeding land development.
 BUT, such a policy reflects obsolete circumstances. (1) Society had increasingly regulated the
use of land by the landowner for the general welfare; (2) access to sunlight has taken on new
significance as a source of energy; (3) the policy of favoring unhindered private development in
an expanding economy is no long in harmony w/ the realities of our society.
 Private nuisance law is therefore better suited to resolve disputes over property development
than a rigid rule which does not recognize a landowner’s interest in access to sunlight. It is
applicable b/c it will not prevent land development or unduly hinder the use of adjoining land.
 Solar Access Statutes: By 1988, 24 states had adopted express solar access statutes, which
sanctioned the voluntary creation and enforcement of solar access rights. But, movement stalled
when traditional energy sources (oil, coal) became inexpensive again.
 20 yrs before Maretti: why no nuisance action to protect against lost of sunlight? If the only thing
was loss of sunlight, then house-builder wins. BUT now there’s economic value to having
sunlight. Changes conditions for practical purposes, 3 things worth protecting (policy reasons)
 If you want to maintain your right to sunlight or view: 2 options- persuade local leg body there is a
regulable under police power activity here, therefore ought to be an automatic right to use the
sunlight that should be used as a amteter of land use control. Or, work out some kind of view
corridor as covenants running with the lands, anybody buying an uphill house, has a right to
enforce against downhill house. Otherwise, there is no remedy.
 Save Sandy beach: preserve a view of the blowhole, can you use police power to do that? Gov
could condemn those rights and now allow people to build there bc it needs to remian pristine,
pay $ 1 mill or whatever and you can’t build there.
Matter of Wallach v. Town of Dryden
Issues
 Did the State Legislature eliminate the home rule capacity of municipalities to pass zoning laws
that exclude oil, gas, and hydrofracking activities in order to preserve the existing character of
their communities?
Rule
 A municipality is not obliged to permit the exploitation of any and all natural resources within
the town as a permitted use if limiting that use is a reasonable exercise of its police powers to
prevent damage to the rights of others and to promote the interests of the community as a
whole.
 To determine whether a supersession clause expressly preempts a local zoning law, there are
three factors that need to be considered: the plain language of the supersession clause; the
statutory scheme as a whole; and the relevant legislative history.
Rationale
 First you need to look at the clause itself. The clause is mot naturally read as preempting only
local laws that purport to regulate the actual operations of oil and gas activities, not zoning
ordinances that restrict or prohibit certain land uses within town boudnaries. Plainly, the zoning
laws in these cases are directed at regulating land use generally and do not attempt to govern
the details, procedures, or operations of the oil and industries.
 Then we need to look at the statutory framework as a whole. The state purposes of the law are
fourfold: to regulate the development, production, and utilization of natural resources of oil and
gas in this state in such a manner as will prevent waste; to authorize and to provide for the
operation and development of oil and gas properties in such a manner that a greater ultimate
recovery of oil and gas may be had; to protect the correlative rights of all owners and the rights
of all persons including landowners and the general public, and to regulate the underground
storage of gas, the solution mining of salt, and geothermal, stratigraphic and brien disposal
 wells. It is apparent that OGSML is concerned with the Dpt’s regulation and authority regarding
the safety, technical, and operational aspects of oil and gas activities across the state. The
caluse fits comfortably with the leg framework in that it invalidates local laws that would intrude
on the Departments regulatory oversight of the industry’s operations, thereby ensuring uniform
exploratory and extraction processes related to oil and gas production. There is nothing to
suggest that the supersession clause was meant to be a broader than required to preempt
conflicting local laws directed at the technical operations of the industry.
 Finally need to look at leg history. Nothin in leg history undermines view that the supersession
clause does not interfere with local zoning laws regulating the permissible and prohibited uses
of municipal land. The pertinent passages make no mention of zoning whatsoever. The history
makes clear that the Leg’s primary concern was with preventing wasteful oil and gas practices
and ensuring that the Dpt had the means to regulate the technical operations of the industry.

(10)Coastal Zones & Wetlands

Although the line between environmental land and land use controls is hardly bright, some land use
regulations are more clearly designed to improve environmental conditions than others.

 Coastal Zone
Coastal zone management has been the subject of state and local regulation through much of the
last three decades in the US. It was not until the mid 1970s that a national program of coastal
zone management commenced under the federal Coastal Zone Management Act (“CZMA”).

A. Types of Permits Applied For

(1) Fill permits [Clean Water Act—Army COE);
(2) SMA permits;
(3) Floodplain permits;
(4) Army COE permit need for anything affecting navigable waterways and extends to all
wetlands adjacent to a navigable waterway.
B. CZMA
Designed to largely encourage states in coastal areas to plan, manage, and regulate the use
of land therein, the CZMA provides funds for the creation and implementation of state coastal
zone management plans, on the condition that they follow various coastal land regulatory and
management guidelines.
C. CZMA Requirements
Requires a state’s coastal zone management program to consider:
(1) A definition of the boundaries of that part of the coastal zone that is subject to the
program.
(2) Objectives and policies for zone protection
(3) A statement of permissible land and water uses.
(4) The identification of special management areas (SMAs)
State of HI
o If zoned in CZMA, land is a special management Area (SMA) and to build within SMA, you need
a special management area permit.
o In Hawaii developments will not be approved within an SMA unless the development:
o Will not have any substantial adverse environmental or ecological effect except, however,
where the substantial adverse effect is practicably minimized nad clearly outweighed by
public health, safety, or compelling public interest.
o Is consistent with the with the objectives, policies, and SMA guidelines of the CZMA; and
o Is consistent with the county general plan and zoning.
D. Takings Analysis for Coastal Zones/Wetlands
There has been a regulatory taking if:
(1) There was a denial of economically viable use of the property as a result of the regulatory
imposition.
 (2) The property owner had distinct investment-backed expectations, and
(3) It was an interest vested in the owner, as a matter of state property law, and not w/in the
power of the state to regulate under CL nuisance doctrine.
E. Coastal Boundaries
The inland boundary is based on the extent of an area needed to control shore lands, the use
of which have a direct and significant impact on coastal waters (i.e. salt marshes, beaches,
floodplains, islands, and watersheds). State must define its inland boundary w/ sufficient
precision so that interested parties can determine whether their activities are controlled by the
management program.

 How environmental law affects prop low

 One must keep in mind at all times when talking about preserving prop in pristine condition> keep
in mind LUCAS
 Nuisance standard- or implanting backround principle of public trust or custom>>gov has no
choice
 S Ct is clear-when take all econ value>>equivalent of eminent domain
 Important from notice standpoint.

Topliss v. Planning Commission -spent a ton of time

Coastal Zone
Facts: Topliss, a developer, wanted to construct multi-story office buildings in Kailua, Kona. He filed a
permit petition with the planning commission for a special management area (SMA) permit pursuant to the
CZMA. Topliss also filed a boundary petition, seeking an amendment of the SMA to exclude his property.
Commission denied both petitions, and the trial court affirmed the denials.
Rule:
 Under the CZMA, development cannot be approved within the SMA unless the development
o Will not have any substantial adverse environmental or ecological effect except where the
substantial adverse effect is minimized and clearly outweighed by public health, safety, or
compelling public interests. (traffic not going to affect)
o Is consistent w/ objectives, policies, and SMA guidelines of the CZMA and
o Is consistent w/ the county general plan and zoning. (land is properly zoned)
Notes:
 The property came under CZMA b/c of anticipated development pressures, steep topography,
soil composition, plan designation as an important scenic resource, and the need to better
coordinate the overall development of the area.
 The Boundary petition is denied b/c the Commission is trying to protect scenic views to the
ocean. Π never objected at the time the property was placed in the coastal zone—but you can’t
wait until the time that the regulation actually adversely affects you.
 Per ICA, as long as the proposed development meets the above conditions, the commission must
approve the permit. But, here, the commission took a condition not related to coastal zones at all
—traffic management.
 HI also has a state statute—HI Coastal Zone Management Act—that gives authority to the
counties. (Honolulu is a little different b/c it leaves the permitting process with the city council
where the other counties use the planning commissions.)
 The purpose of CZMA is to control development w/in a SMA by means of the SMAP, not to totally
prevent or prohibit development. (in this case to protect shoreline view)
 Land mass is coast=HI, more linear coastline than anywhere else
 Regulating the coast? Topliss-classic decision by Judge Heen-superb legal mind.
 Land is properly zoned. Why is it appropriate to build commercial? Not a pristine area, high-traffic
area
 Low-intensity commercial use-just office buildings, relatively unintrusive.
 What REGIME has it triggered? Commission-local agency. Administration of this legal regime is
in the hands of the local agency. Administrative act (not legislative)
 If you’re not a leg body, can’t make a leg decision.
  Policies: why and where come from? Why have this permit? SMA permit-management of coast.
Whose policies-comes from coastal zone management statute for State of HI, not from zoning
power, it’s a state statute.
 State is implementing: fed CZM.
 Fed gov has no police power unless on its own land, nowhere in constitution.
 Must implement a state program that follows these goals and undertakes this level of protection.
If you don’t, you won’t get fed $
 Have to worry about CZMA ONLY IF: have juris>>must be within the coastal zone. If the law
doesn’t cover you jurisdictionally, you’re free to ignore it.
 Ends at high water mark. Why does it end at my property? I’m ¾ mi away from beach. Why am I
in coastal zone in first place? –must raise it within a few weeks of zoning if you have issues
 Trying to protect=Public interest: public view. –see along and down the beach
 Even though can’t see where water and leand meets-still reasonably could be protected.
 Ct: only traffic increase you can find is-near property, haven’t proven that the traffic will affect the
coastal zone.
 Regulatory regime-applies to all coastal zones.
 Coastal management permit- L&L-needs an SMP to operate business along shorelines of the
Great Lakes

 Wetlands

Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers

Wetlands
Facts: Petitioner was a consortium of municipalities, which sought to develop an abandoned gravel pit as
a solid waste disposal site. Respondent denied petitioner’s application for a disposal permit—even though
the gravel pit constituted non-navigable, isolated, intrastate waters—on the grounds that they were
subject to protection as habits for migratory birds.
Rule:
 Where an administrative interpretation of a statute invokes the outer limits of Congress’ power,
the court excepts a clear indication that Congress intended that result.
Notes:
 Judgment was reversed; even though petitioner’s proposed waste disposal site was a habit for
migratory birds, federal agency JDX did not extend to such non-navigable, isolated, intrastate
waters under the Clean Water statute, which expressly limited such JDX to navigable waters.
 The Clean Water Act extends to instrastate waters, (1) which are or would be used as a habitat
by birds protected by Migratory Bird Treaties; or (2) which are or would be used as habitat by
other migratory birds which cross state lines; or (3) which are or would be used as habitat for
endangered species; or (4) used to irrigate crops sold in interstate commerce. This has been
dubbed the “Migratory Bird Rule.
 SWANCC-formal conglomerate that wants to dispose waste in abandoned gravel pit
 US Army Corps-Clean Water Act- section 404a- navigable waters- permit to dredge of fill
navigable waters
 Issue: could affect intrastate commerce
 Fed gov has not police power
 Must be adjacent to navigable waterways
 Wetlands: unequivocally NOT NAVIGABLE- Congress said to extend to wetlands ADJACENT to
navigable waterway>>Ct: it’s not a wetland, and it’s not adjacent
 Corps-lacks the authority >>not enough for Corps to assert its juris>nothing in statute, Congress
didn’t assert>>not going to permit you to reg dredging under Migratory (no nexus to interstate
commerce)
 Rapanos: Kennedy: Corps-majority shifts- like the Kelo case in respect to eminent domain, this
doesn’t make it for me, substitute the test of Nexus. Whatever waterway to navigable waterway,
that NEXUS becomes key. ANY REMOTE CONNECTION
 Ct retreating from hugely expansive interpretation of commerce clause.
(11)Clean Air, Water, Endangered Species, & Public Lands (Review Nuisance)

 The Clean Water Act

The principal purpose of this act is cleaning and maintaining the nation’s waters. The government
utilizes structural techniques (financing and construction of waste water treatment plants and
ancillary facilities) and nonstructural techniques (regulatory mechanisms, such as planning and
land use controls)

A. Federal Water Pollution Control Act (FWPCA)

Prohibits the discharge of any pollutant by any person unless certain sections of the act are
complied with. An existing pollutant source can continue to discharge waste pursuant to an
NPDES grant.
B. Flood Zones
It is illegal to construct a dwelling in a floodway or dangerous coastal zone. People can only
build in floodplain if they comply w/ zone rules, regulations, etc.. Development must be one
foot higher than the highest wash of the wave in a flood. Like CZMA, states comply for
Federal money.
 This replaced the law of nuisance
 We now have statutes that are mostly effective, fed in nature, as well as state law to protect
natural resources
 Look at these cases bc they deal with the basic regimes
 Imaginative lawyering>>evolves into the principles to determine basic environmental issues

Homestake Mining Co. v. US Environmental Protection Agency

Clean Water Act
Facts: In 1974, SD revised its water quality standards and designated a creek as a permanent fishery and
for recreational use. Π (mining company) was used to dumping waste into a tributary of the creek. Π
declined all opportunities to get a hearing on its complaint and instead asked the court to find ∆’s act
invalid b/c state standards were more stringent than federal standards.
Rule:
 The Federal Water Pollution Control Act prohibits the discharge of any pollutant by any person
unless certain sections of the act are complied with. An existing pollutant source can continue
to discharge waste pursuant to an NPDES permit.
 The state is allowed to adopt more stringent standards than those established by the Act.
Notes:
 The establishment of SD’s water quality standards and EPA’s approval of them appeared to be
in compliance w/ the Federal Water Pollution Control Act (FWPCA) and plans were not
unreasonable.
 EPA is also responsible for keeping groundwater unpolluted. Its principal authority comes from
the Safe Drinking Water Act, which establishes a national regulatory program for injection of
pollutants into certain underground water sources.
 The NPDES spawned an industry of contructing POTW (publiy owned treatmeennt work) If you
run stuff through you do not need NPDES permit. The EPA and the federal gov set aside 100’s
million to set up POTW. Treatmenet plants are rated at the number of millions of gallons a day of
wastewater that they can take in. This is an important element in that if one needs a publicly
owned treatment work nearby. We can see that those places that need a POTW are in great
demand.
 Need NPDES permit to discharge water into navigable waters
 Permit -required by the Clear Water Act
 Why is it difficult for this party to get one?
 P’s argument: State standards are more strict than the Act.
 Trying to keep creek water clean. One way to monitor it=Total Maximum Daily Loads (TMDL)-
check with a stick.
  Enforced though effluent and segments though TMDL-not as important in HI bc not as much
discharge into creeks
 1) Fed gov has no police power, so how do they get at this particular kind of regulation?
COMMERCE CLAUSE> waterways cross juris. General standard that applies everywhere (not
relevant to HI and AK). 2) Also, fed gov provides for 80% of the funding for a publicly owned
treatment center. Fed gov demands treatment plan be economically viable and efficient.

 The Clean Air Act

This act requires state and local governments to implement clean air measures in substantial part
through land use controls.
The act provides for geographically uniform federal quality standards for ambient air to be
established w/ respect to key pollutants.
Administered by the Environmental Protection Agency (EPA).
Standards enforced through the State Implementation Plans (SIP), or else draw up SIP for
recalcitrant state.
When a state does not meet the standards of the Act, it must develop a SIP to bring the area into
attainment.
No new source of pollutant can be built until standard is attained.
NOTE: EPA is part of the executive branch, the court does not need to defer b/c not Leg.

Citizens Against Refinery’s Effects v. US Environmental Protection Agency

Clean Air Act
Facts: HREC wants to build a refinery but does not meet the level for photochemical oxidants. Court
allows an offset of hydrocarbon pollution by reducing the amount of cutback asphalt used for paving in
three highway districts.
Rule:
 The offset program permits states to develop plans, which allow construction of new pollution
sources where accompanied by a corresponding reduction in an existing source.
Notes:
 Court says this is okay as long as the EPA’s action is not arbitrary, capricious, or an abuse of
discretion.
 1) Because Congress intended that the states and the EPA be given flexibility in designing and
implementing SIPs, states can make reasoned choices as to which areas may be used to offset
new pollution and how the plan is to be implemented.
 The offset program was initiated to 2) encourage state economic growth. Thus, a state plan
designed to reduce highway department pollution in order to attract another industry is a
reasonable contribution to economic growth without a corresponding increase in pollution.
 3) the scientific understanding of ozone pollution is not advanced to the pt where exact air
transport may be predicted.
 SIP-to control air pollutants. How do you control hydrocarbon emissions?
 What standards is the EPA enforcing? National ambient air quality standards. EPA is trying to
implement no-growth environment-not allowed to produce anymore sources of pollution.
 State of Virginia wants this plan>>jobs, but they can’t meet national air quality standards. Must
meet emission standard.
 If you’re in an air quality maintenance area>>must have mechanism in place so that region isn’t
going to get dirtier, and hopefully clean it up
 How does state propose to meet standard? Offset emissions by reducing hyrdocarbons by
switching to cleaner asphalt for roadways
 Prevent anything that hurts commerce among the states?

 Endangered Species Protection and Property Rights

Act provides a means to conserve ecosystems of endangered species. Enforced by the Fish and
Wildlife Service (FWS). Animals must be on the list to be protected.

A. Taking
 “Taking” is defined as “to harass, harm, pursue, hunt, shoot, wound kill, trap, capture, or
collect or to attempt to engage in any such conduct. It has been further defined as
“significant habitat modification” that kills injures wildlife by “significantly impairs/disrupts
normal behavioral patterns.”
B. HI Law
Land Use Commission is under obligation to put away land that has endangered species for
conservation. HI law is very draconian, designation of area as critical habitat brings all use of
land to immediate halt—triggers state statute.

Defenders of Wildlife v. Bernal

Endangered Species
Facts: School District buys land and wants to build a new high school. When ∆ found out school fell w/in
the area designated as critical habitat for the owl, it re-designed the project so that the western portion of
the property would remain undeveloped and fenced off. Π alleges that the construction is likely to harm or
harass a pygmy owl.
Rule:
 Habitat modification that s reasonably certain to injure an endangered species by impairing
their essential behavioral patterns satisfies the actual injury requirement.
 In order to prove a take, defenders have the burden of proving by a preponderance of the
evidence that the proposed construction would harm a pygmy owl by killing it or injuring it, or
would more likely than no harass a pygmy owl by annoying it to such an extent as to disrupt its
normal behavioral patterns.
Notes:
 Court says π has the burden of proving by a preponderance of the evidence that the proposed
construction would harm a pygmy owl by killing or injuring it, or would more likely than not harass
a pygmy owl by annoying it to such an extent as to disrupt its normal behavioral patterns.
 Construction of the school will not result in a take of the pygmy owl b/c no owls were sighted on
site and the areas that possible owls will be left undeveloped.
 Who designates habitat? FWS (fed gov-power from ESA)
 Fed gov: only affects fed land. Under that portion of the act, that’s true. The rest of the
act>>concentrates on species trying to protect.
 Act: “Can’t take species”= must kill or injure the species. Different rules and regs apply to diff
parts of the act.
 FWS designation of habitat does trigger the likelihood that messing with that land will trigger a
“take”
 Under ESA> we have a state conservation district which covers 40% of land in state>>great
majority is publicly owned. Criteria for land use>>protection of endangered species
(habitat)>>Grps: designation of habitat>>triggers that land becomes conservation land >>>so
Lucas taking when 12% is conservation>>yes probably. Would SCOTUS change its mind. As
long as Lucas remains law>unusable for economically beneficial uses>>then more species
designated, more habitat, more taking?
 Fed gov does have under prop clause to issue regs regulating its prop

 Public Lands
Much of the land that was eventually to become the vast majority of federal land called “the public
domain” was acquired through fortuitous purchase. The major thrust of legislation and other
programs governing its use was to put as much public land as possible rapidly and expeditiously
into private hands.

Kleppe v. NM*
Public Lands
Facts: The Wild Free-roaming Horses and Burros Act was enacted to protect all unbranded and
unclaimed horses and burros on public lands of the US from capture, branding, harassment, or death.
The Board asserted that the federal gov’t lacked power to control wild horses and burros and stated its
intent to exercise tis state law powers over all estray horses. The Board rounded up and removed 19
burros found on public lands and sold them at the auction.
Rule:
 The property clause gives Congress the power to protect wildlife on the public lands, state law
notwithstanding.
Notes:
 The states have broad trustee and police powers over wild animals w/in their JDXs. But, those
powers exist only in so far as their exercise may be not incompatible w/, or restrained by, by
rights conveyed to the federal government by the Constitution. No doubt it is true that as between
a state and its inhabitants the state may regulated the killing and sale of wildlife, but it does not
follow that its authority is exclusive of paramount powers.
 Reasoning: Property Clause does permit “an exercise of the complete power which Congress has
over particular public prop entrusted to it” THIS INCLUDES POWER TO REG AND PROTECT
WILDLIKE LIVING THERE
 Act is constitutional exercise of congressional power. The Board were CONTRARY to the
provision of the Act.
 State law conflicts with fed statute
 Fed gov: Failure to exercise it, means it has no power to declare state action illegal
 HI- not much fed land, remains of ceded lands>>ceded by HI to US
 West coast is all fed land>>why??
PART IV: PRIVATE RIGHTS IN LAND/ANOTHER—ESTATES , FUTURE INTERESTS, &
COVENANTS

(12)Estates in Land – Present & Life Tenants

 The Estate Concept

The estate concept recognizes that interests in land may be temporal and that ownership is more
than just the right of present possession.

A. Present v. Future Interests

Ownerships may be divided between 2 or more individuals w/ simultaneous claims over time,
w/ one owner entitled to the present use & another to its future use.
B. Future Interest
A future interest is a non-possessory interest that will or may become a present estate in the
future. A future interest is a present interest in the sense that it is a presently existing interest.
But it is not a presently possessory interest, and that is why it is called a future interest.
C. Categories Are Limited
Just as possessory estates are limited in number (fee simple, fee tail, life estate, leaseholds),
so are future interests. There are 5 future interests: (1) possibility of reverter, (2) the right of
entry, (3) the reversion, (4) the remainder, & (5) the executory interest.

 Present Estates
Sometimes called a possessory estate or just abbreviated as estate, a present estate is a legal
interest that entitles its owner to the immediate possession of real or personal property. There are
two types of present estates: (1) freehold & (2) non-freehold estates

A. Non-Freehold Estates
There are four different types that will be discussed in a future section: (1) Term of years, (2)
Periodic Tenancy, (3) Tenancy at Will, (4) Tenancy at Sufferance.
B. Freehold Estates
The three freehold estates are: (1) the fee simple [which may be absolute OR defeasible], (2)
the fee tail, and (3) life estate. The technical distinction between the three basic freehold
estates is premised on duration.
C. Fee Simple Defeasibles
 The fee simple is the most common freehold estate. There are two types of fees simple: the
fee simple absolute & the 3 forms of defeasible fees. Defeasible fees will be discussed in
(20).

 Fee Simple Absolute

Highest form of estate, the holder owns the property absolutely. The duration of his ownership is
potentially infinite (simple); and no event will automatically divest the owner of his interest
(absolute). When an owner has a fee simple absolute possession, no future interests are held by
anyone. It is possible for more than one person to possess an estate in fee simple absolute.

A. Inheritable
The fee simple absolute is inheritable under intestacy statutes. Thus, if the owner of a fee
simple absolute dies, the property passes to the people deemed to be his “heirs” under the
intestacy statute of the state where the land is located.
B. Words Creating
Generally, using the phrase “and his heirs” creates a fee simple absolute. However, most
states have abolished this requirement.
C. May Alienate and/or Transfer
The owner of an estate in fee simple absolute may choose to alienate his entire estate to
another owner; he may choose to alienate only a portion of it and thus retain the possessory
right to it at a future time; or he may transfer a portion of the estate to one party & the future
interest in it to another.

 Fee Tail
The fee tail is a largely obsolete freehold estate whose duration was measured by the lives of the
lineal descendants of a designated person. Today the fee tail is virtually extinct in the US. Yet fee
tail remains a subject of academic interest, principally b/c the reasons for its rejection help explain
the foundational principles of American property.

A. Purpose
The fee tail allows the owner of land to ensure that the property remains w/in his family
indefinitely.
B. Words Creating
The most common way of creating a fee tail was utilizing the phrase “to A and the heirs of his
body.”
C. Modern Treatment
If a modern grantor attempts to create fee tail, this contingency is addressed by statute in
almost every state. The majority of states interprets fee tail language as creating fee simple
absolute in the first taker.

 Life Estate
A life estate is a freehold estate whose duration is measured by the lives of one or more specified
person (ex. to B, for B’s life). The holder of the life estate is the life tenant. Alternatively, the
duration of the life estate may be measured by the life of a person other than the grantee (ex. to B
for the life of C); this is called a life estate pur autre vie.

Example: OA for life.

O=Reversion
A=Life Estate
 When A dies, what interest does O have (at the commencement of this O has a future
interest)>reversion
 You’ve identified the interest, not the class (there are multiple under reversion)>>only
place title can go is back to O
  What if O is already dead?=impossible for O to take possession, but that reversion has
value. Ex: transfer of Ala Moana shopping center>>makes $ always. Also, the certainty
that the interest of Ala Moana isn’t conveyed away>>it will vest back to the owner.
 Future interest are saleable.
 O could transfer (sell reversionary interest, forget to deal with at all) the next day >>if the
latter-pass by the laws of intestate possession>passes to bros and sis, then kids, then to
collateral, then to ancestors.
Example (Pur Autre Vie): O A for B’s life.
O=Reversion
A=Life Estate Pur Autre Vie
 A could die, since the estate is NOT FOR A’S LIFE, A could leave by will to whomever.
That destructs at B.
 I will pay for the rights to Ala Moana for B’s life, O retains reversion.
 Never assumption that it is a life estate.
Example: O A and his/her heirs
O=Reversion
A=Life Estate
 “and his/her heirs”-shorthand for fee simple=HEIRS DON’T TAKE ANYTHING BY IT,
THEY HAVE NO RIGHTS

A. Duties & Powers of Life Tenant

1. Duties
The life tenant has a number of duties vis a vis the future interest. Most importantly he may
not commit waste, i.e., he may not unreasonably impair the value which the property will
have when the holder of the future interest takes possession. Thus he must make
reasonable repairs, not demolish the structure, pay all property taxes etc.…
2. Powers
The tenant cannot convey a fee simple, or any other estate greater than the life estate he
holds. But he may convey the interest that he does hold, or a lesser one.
B. Waste
Life tenant has the economic use of property for life, and the remainderman owns its future
economic value. Waste is the term used to describe the actions of the life tenant that
permanently impairs the property’s value or the interest of the future interest holders. A life
tenant is liable to the remainderman for waste. There are three kinds or waste: (1) affirmative,
(2) permissive, and (3) ameliorative. (See Brokaw)

1. Affirmative Waste
When a life tenant acts affirmatively to damage land permanently, the life tenant has
voluntarily committed waste.
2. Permissive Waste
When a life tenant fails to act reasonably to protect deterioration of the land, permissive or
involuntary waste has occurred.
3. Ameliorative Waste
When the life tenant acts affirmatively to change the principal use of the land, and thereby
increases the value of the land, ameliorative waste has occurred. This kind of waste is
only actionable when it is clear that (1) the grantor intended for there to be no change in
use, and (2) the property may still reasonably be used in the fashion the grantor intended.
 interest has to be accounted for
 There will be estate and future interest on the exam
 Categories and language is critical
 Reversionary interest involved-must identify that interest-there are many categories under that

Brokaw v. Fairchild
Duties of Life Tenants
Facts: Owife for life or remarriage (no interest that she can devise to anyone outside the family), W=life
estate
Then to π, George, for life. (Remainder-almost always FOLLOWS LIFE ESTATE, doesn’t cut short life
estate)
When π dies, it goes to his daughter. If she dies, it goes to her children then living, (further contingent
interest)
If both contingent, since contingent there is AUTOMATICALLY A REVERSION FOR THE GRANTOR
-there is no condition of survivorship: conceivable that we would have 3 alternative contingent
remainders, NOT VESTED
-no survivors and no transfer (any party can transfer their future interest) >>goes back to O
otherwise to ∆’s, George’s siblings. George wants to tear down the current house and build an apartment
complex b/c it would be more profitable. ∆’s can enjoin that action because as remaindermen they have
the right to get the property in a reasonable state (expensive house as it is now).
 The law intends that the life tentant shall enjy his estate in such a reasonable manner that the
land shall pass to the reversioner or remainderman as nearly as practicalbe in its nature,
character and improvements. The only question involved is the act of the tenant in changing
the estate is so changed as to be an injury to the inheritance. With the my residenc quote, P is
entitled to use the building and plot reasonably for his own convenience or profit. To demolish
that building and plot reasonably for his own convenience or profit. To demolish that building
and erect upon the land another building, even one such as the contemplated 13 story apt
house, would be the exercise of an act of ownership or dominion. IT would change the
inheritance or thing, the use of which was given to the P as tenant for life, so that the
inheritance or thing could not be delivered to the remaindermen or reversioners at the end of
the life estate.

Rule:
 Waste is any act of the life tenant which does permanent injury to the inheritance.
Notes:
 Affirmative/voluntary waste involves the destruction of buildings on the land or the exploitation of
natural resources.
 Permissive/involuntary waste occurs when the tenant neglects the property and allows it to fall
into disrepair. A life tenant thus has minimal duty to make repairs to the property.
 Acts of God are not considered waste.
 Ameliorating waste is waste that increases the value of land. This is usually not actionable b/c the
tenant has increased the value of the land. Exception: where there has been a dramatic change
in conditions making it impossible to carry out the grantor’s intentions at the time the estate was
created.
 Periodic Tenancy: Tenancy for a fixed period of time & continues for periods equal to the original,
unless either the landlord or the tenant provides notice to terminate the estate. The period may be
any length. Traditionally, notice of termination must be given prior to the start of the subsequent
period.
 Tenancy at Will: An arrangement where either the landlord or the tenant can terminate the estate
an any time. If only one party has the right terminate, that is not tenancy at will.
 Tenancy at Sufferance: When a tenant stays past the tenancy period; the tenant can be evicted
at any time.
 Difference between freehold estate (fee simple, life estate, fee tail) and non-freehold estate
(lease, periodic tenancy, etc.…) is legal title.
 Holder of a freehold estate has seisin, while holder of a non-freehold estate has possession only.
 Why do we care who has the future interest?
 George is the life tenant- he’s the grantor’s son.
 The remaindermen=George’s siblings
 Common scheme at play?: siblings: common scheme here, and George is destroying scheme-
Ct=no common scheme
  Ultimate issue=WASTE-someone to whom the prop title is going to pass (however far in the
future)- has a right to complain about the tenant in possession
 ***Present possessor who does not have fee simple interest is WASTING THE PROPERTY, so
the remaindermen have a right to deal with it.
 *** for life or remarriage (no interest that she can devise to anyone outside the family
 rights of the parties depends on: their future interest at the making
 issue of a deceased child-
 only if G’s children don’t have issue and don’t survive and G doesn’t survive>>then under law of
estates and future interest, O=reversion.
 “an issue of the deceased child of George”=G’s grandkids
 What about the other 2 lots? Violated shall cease and determine and become part of my residual
estate (DETERMINABLE FEE)

Future interests
Reversionary –In Grantor
 Reversion
 Poss/reverter
 Rt of re-entry
In “Stranger”
 Exec. Interest
 Remainders-either vested or contingent
 Life estate
Trust-
 Skip generations
 Transfer assets and keep in the family.
 Lang defeasible or determinability in them
(13)Estates in Land – Conditional & Determinable Estate
An estate may be made defeasible—subject to termination—upon the happening of some future event. A
defeasible fee simple is subject to termination or divestment upon the occurrence of a future event. The
future event may never happen, in which case a defeasible fee endures as long as a fee simple absolute,
but the threat of termination is always there. There are three types of defeasible fees simple: (1) the fee
simple determinable, (2) fee simple subject to condition subsequent, & (3) fee simple subject to executory
limitation.
 Fee simples granted based on if event happens or doesn’t happen

 Fee Simple Determinable

Created when the grantor intends to grant a fee simple only until a specified future event
happens and uses language in the grant that manifests that intent.

Example: OA provided the property is used for church purposes.

O= Possibility of Reverter
A= Fee Simple Determinable

A. Restriction of Uses
Most fees simple determinable are used to prevent the property from being put to a certain
use that the grantor opposes. The limitation controls even after the property changes hands
numerous times.
B. Possibility of Reverter (Future Interest of Grantor)
The creator of a fee simple determinable is always left w/ a “possibility of revert,” the
possibility that title will revert to him after the stated event occurs. In most states, this interest
can be transferred by any of the conventional means (i.e. sale, gift, devise).
C. Statute of Limitations
 Many states have enacted statutes of limitation which bar a possibility of reverter after a
certain period. Some statutes begin to run after the fee simple determinable is created, others
don’t start to run until the stated event occurs.
D. Words Creating
Estate is created by the use of clear, unequivocal durational language that make it clear that
the estate is to end automatically upon the occurrence of a stated event. Include words as “so
long as,” “until,” and “while.” If the conveyance contains a specific statement that upon the
happening of the event, the land will “revert” to the grantor, it is a sign of fee simple
determinable.

 Fee Simple Subject to Condition Subsequent

Created when the words of a grant support the conclusion that the grantor intends to convey a
fee simple “absolute,” but has attached a string to the grant so that if a specified future even
happens (the condition subsequent to the grant) the grantor may pull the string and get his fee
absolute back.

Example: OA provided the property is used for church purposes and if not so used then O may
retake possession.
O = Right of Entry/Power of Termination
A = Fee Simple Subject to Condition Subsequent

A. Right of Entry or Power of Termination

The grantor future’s interest is known as either right of entry or power of termination. Grantor
has a right to take back the property—but nothing happens until he affirmatively exercises
that right.
B. Distinguishable from Fee Simple Determinable
In a fee simple determinable, the holders of the possibility of reverter often have a long or
unlimited time to sue. In the case of a fee simple subject to condition subsequent, the statute
of limitations starts to run upon the occurrence of the stated event, and usually is for a very
short period. Therefore, if the holder of the right of entry does not promptly re-enter or sue, he
will lose the right.
C. Words Creating
A fee simple SCS is created w/ language that attaches words of condition to the estate in fee
simple & reserves the right or option to re-enter and re-take in the event of breach. Usually
signaled by the conjunctive phrase, “but if.” Other indicators include “provided,” “however,”
and “on condition that.”
D. Transferability
Fee simple SCS is freely transferable during life, inheritable, and may be devised by will. Of
course, once the limiting condition has occurred & the right of entry exercised there is no
estate left to be transferred.
E. Preference For Fee Simple Subject to Condition Subsequent
It is often difficult to determine which defeasible fee has been created. Courts prefer fee
simple SCS because fee simple determinable produces automatic forfeiture of title and
possession, while fee simple SCS makes forfeiture an option of the holder of the right of
entry. In general, courts try to avoid forfeiture of title b/c it is harsh, depriving a fee holder of
the considerable reliance interest s/he has developed by possession of the land. (See
Storke)

Storke v. Penn Mutual Life Insurance Co.

Fee Simple Subject To A Condition Subsequent
Facts: π grantors’ heirs filed an action against ∆ property owner requesting that the trial court establish
their title in the property b/c of the breach of a covenant that liquor not be sold on the premises. Trial court
rule in the property owner’s favor & the heirs appealed. Property owner affirmed. Heirs did nothing and let
saloon stay on prop for long time before bringing action
Rule:
 If the grantor creates a fee simple subject to condition subsequent, the grantor retains a right of
entry. The law does not require that the grantor expressly retain a right of entry. If the words of
the instrument are reasonably susceptible to the interpretation that the parties contemplated
this type of forfeitable estate, the court will imply a right of entry.
Notes:
 Heirs Π’s contend the provision constitutes fee simple determinable, whereas the ∆ argues
provision constitutes fee simple condition subsequent. Either way π loses.
 Courts prefer to construe provisions that terminate an estate as conditions subsequent rather
than conditional limitations, and in doubtful cases will so construe them.
 Heirs did nothing and let saloon stay on prop for long time before bringing this action.
 You have to exercise your right of re-entry in a reasonable amount of time.
 The court seems determined to make sure this property doesn’t forfeit.
 Court says π retained no right of re-entry and did not make an entry so title stays w. the grantee.
Grantor also knew of the breach and did nothing, so the grantor cannot recover (SoL issue).
 If the estate was fee simple determinable, the grantee’s interest is hostile to that of the holder of
the possibility of reverter from the moment the limitation is violated; thus the clock for adverse
possession begins running (Stat of Lim). On the other hand, since the holder of a right of entry is
not required to immediately enter and reclaim property, the grantee’s presence is not adverse.
Courts are split on this.
 Cts hate forfeitures-aka the changing of the right of possession by the automatic happening of an
event, even though fair and direct reading, the parties had an instrument that would lead to other
outcome
 The triggering event can come way later, at that point, the enforcement of these kinds of estate
and future interests, make few allowances for change of interest in prop
 If conditions in the land have radically changed, the ct will not enforce. However if the cts are
going to be honest and fair in respect to future interests, forced to enforce NO MATTER WHAT.
UNLESS: HUGE JUDICIAL PREJUDICE AGAINST FORFEITURE.
 Common condition- prohibit sale of liquor.
 Covenant lang-what’s the nature of the fee simple and what’s the future interest?? Future
interest=possibility of reverter. When you identify it as fee simple determinable>>only possibility:
possibility of reverter (not possibility of reversion, etc)
 Vs. fee simple subject to condition subsequent=allows for right of re-entry and right of
termination.
 Re-entry is a reversionary interest. Return the possession to the grantor.
 Reversion only follows life estate.
 Possibility of reverter follows fee simple determinaable
 Right of reentry follows fee simple condition subsequent
 O>A so long as no saloon on the premises and if ever so used, A shall forfeit. (nothing in lang
that talks about reentry.
o Then why is the ct even considering right of reentry?
 It’s obviously fee simple determinable. = If so, P’s would win. Possibilty of reverter-P should win,
there should be a forfeiture bc using as a saloon
 D is claiming that instead of fee simple determinable, arguing it’s fee simple SCS with a right of
reentry. AND P’S HAVEN’T EXERCISED RIGHT OF REENTRY.
 If you mean to create a right of reentry SCS, then must say “grantor may reenter prop and
terminate the estate and take possession in fee simple”>>make it CLEAR. Then no burden on
what lang to use
 Right of reentry condition: CONDITION SUBSEQUENT=BUT IF vs. so long as (there’s a grant,
but condition subsequent to that grant)
 Limitation on how long you can wait to enforce your condition
 O>A so long as no saloon premises and if ever so used, to B and her heirs. (and her heirs means
nothing, it goes to B). It can’t be reversionary interest (not reversion or possibility of reverter or
right of reentry). It’s going to be exec interest, remainders or life estate. Is it naturally occurring or
something that is cut-short? Cut-short. Then it’s not a remainder. Then it’s an executory interest
 in B. Here we triggered one of the most complex laws ever devised. B will eventually die. Rule
against Perpetuties =life in being +21 yrs>>not going to happen>>violates RAP. >>gift ineffective.
 RAP-never applies to reversionary interests. >>don’t worry about RAP unless talking about
interests in a stranger
 O> A no saloon if ever so used, to B and her heris, during the life of A. >>only effective if prop
used as saloon during the life of A.
 RAP>never applies to reversionary interests, only applies to strangers
 Even if ct was to accept the P’s theory that this is a “conditional limitation” (fee simple
determinable)> you still lose. Why? AP and P knew was being used as saloon and did nothing to
enforce covenant. Changed conditions, and latches=defense. In order to get equity, must do
equity. Changed conditions=bars everywhere, saloon district>>make no sense bc nothing we
know that puts the P in a situation where they will be advantaged if not used as saloon. If land
use or moral issue>>saloons everywhere, make this particular covenant unenforceable. >>Ct’s
will do whatever they can to AVOID FORFEITURE.
 Most competent will unequivocally put in right of reentry
 Exception: if goes to 3rd party, executory interest, lang doesn’t matter, once event happens IT’LL
GO TO 3RD PARTY no matter what. interest transfers whether or not there is a right of reentry
 Possibility of a reverter based on breach of term=Storke>>possibility of reverter. Interest granted,
then SCS, then if no clear articulation of reentry then ct has 2 choices: but if>fee simple SCS, so
long as>fee simple determinable.
 Possibilty of reverter (from determinable) is AUTOMATIC. Vs. right of reentry (SCS) you have to
go get it.
 If you don’t exercise>right of possession stays with original grantee, if you do, it shifts.

 Fee Simple Subject To Executory Limitation

A fee simple subject to executory limitation is a fee simple that is divested, or shifted, from one
transferee to another transferee upon the occurrence of some future event. The transfer to a
third-party creates an executory interest. When this happens, a fee simple subject to executory
limitation is created.

Example: OA provided the property is used for church purposes and if not, then to B.
O = Nothing.
A = Fee Simple Subject To Executory Limitation
B = Executory Interest

A. How Its Created

Both the fee simple determinable and the fee simple subject to condition subsequent involve
the creation of a defeasible fee with a future interest retained by the grantor (either a
possibility of reverter or right of entry). But the same defeasible fee estates can be created
with the future interests transferred to a 3rd party instead of retained by the grantor. When this
happens a fee simple subject to executory limitation is created.

B. Automatically Divested
When the divesting condition occurs after a fee simple subject to an executory limitation has
been created, divestiture of the fee is automatic and the holder of the executory interest is
entitled to immediate possession.

Remainders - Contingent Remainders, Vested Remainders, & Perpetuities

Future Interests are legal interest in property that are not possessory but which are capable of becoming
possessory at some time in the future. A future interest is a presently existing property interest but it
confers only a future right to possession.
 Remainders usually always follow a life estate
 Quick way to decide that remainder will not be executory interest
 Future Interests Retained By The Grantor

A. Reversion
The reversion is the future interest that is created when the grantor conveys a lesser estate
than the he originally owned. A reversion is free alienable during life and may be devised or
inherited.

Example: OA for life.

O= Reversion
A= Life Estate
Example: OA for life, then to B and her heirs if she survives A.
O= Reversion
A= Life Estate
B= Contingent Remainder (whether B survives A)

1. Created Automatically
A reversion is created automatically, by operation of law, whenever the grantor conveys less
than his entire interest in the property.
2. Not Necessarily Certain
A reversion is not necessarily certain to become possessory in the future.
3. Not Created When
A reversion is not created when the grantor conveys to one person part of his estate &
simultaneously conveys the rest of his estate to another person.
4. ALWAYS a Vested Interest
Reversions are vested b/c they are created in the person who owned the entire estate at the
moment of creation; b/c the grantor has not parted w/ all that he owned his retained
interest is regarded as vested, even though his future right to possession is uncertain.
This is IMPORTANT b/c being vested at creation; it is not subject to destruction by the
Rule of Perpetuities.

B. Possibility of Reverter
A possibility of reverter is created whenever the grantor conveys the same quantity of estate
that he originally had, but conveys it w/ a determinable limitation attached & retains the right
to future possession if & when the determinable limitation occurs. That future interest in the
grantor is a possibility of reverter.

Example: OA so long as it is used as a church.

O= Possibility of Reverter
A= Fee Simple Determinable

1. Transferability
Common law did not permit transfer of a possibility of reverter inter vivos or by will, but only
by inheritance. Today, most states permit a possibility of reverter to be alienated inter
vivos, devised, or inherited.
2. Termination
Possibility of Reverter can endure forever b/c (1) the triggering limitation may never occur, &
(2) both future interests are vested at creation and so are immune from destruction under
the Rule Against Perpetuities.

C. Power of Termination or Right of Entry

A power of termination (or right of entry) is created whenever the grantor retains the power to
cut short the conveyed estate before its natural termination.

Example: OA and heirs but if property no longer pastures horses, A may retake
possession.
O= Power of Termination or Right of Entry
 A= Fee Simple Subject To Condition Subsequent

1. Transferability
Jurisdictions today are split to whether to follow common law rule (neither alienable inter
vivos nor devisable by will, only inheritable) OR to permit free alienability.
2. Termination
Can endure forever for same reasons as possibility of reverter. Therefore power of
termination is NOT subject to destruction by the Rule of Perpetuities.

 Future Interests Created in Grantees

A. Remainders
A remainder is a future interest created in a grantee that will become possessory upon the
natural expiration of the preceding possessory estate. Some remainders are certain to
become possessory and others have only the possibility of becoming possessory. But all
remainders never divest another estate. The only way a remainder becomes possessory is
the natural expiration of the prior estate.
B. Contingent Remainders
A contingent remainder is a remainder created in an unknown person or that has a condition
precedent to ultimate possession. Contingent remainders have no certainty of becoming
possessory. A contingent remainder in fee simple will always leave a reversion in the grantor.
Contingent remainders are subject to the Rule Against Perpetuities.
 Contingent remainders are destructible bc estate needs to go to someone
 O>A for life, then to B if she attains 21.
O=reversion
A=life estate
B=the general class is stranger>>could be executory interest of remainder>>follows
a life estate therefore it’s a remainder>>contingent remainder
 What happens if B is 20 when A dies? Didn’t fulfill condition under traditional
rule>>it’s destroyed, not possessory. You must be there with condition fulfilled.
Particularly (if she goes college, attains 21)>>what’s the chances of her not reaching
21? Slim. Under those circumstances (HI) we take a wait and see, and O has it til B
becomes 21 a yr later>>then spring interest out of O and give it to B ( form of
executory interest)

Example: O>A for life, if B survives A, to B.
A=life estate
B=Contingent remainder (doesn’t take possession at all UNLES B SURVIVES A), therefore O
must have reversion
O=reversion

1. Conditions Precedent:
A condition precedent must be expressed in the grant. Neither the natural expiration of the
prior estate nor precatory language in the grant constitutes a condition precedent.
Example: MK for life, then to E if she graduates from Princeton.
2. Unborn or Unascertained:
A remainder is also contingent rather than vested if it held by a person who, at the time the
remainder is created, is either (1) unborn or (2) not yet ascertained.
Unborn Example: MK for life, then to K’s children.
Unascertained Example: MK for life, then to K’s heirs.
3. Named?
Contingent remainders get their name b/c we have no way of knowing at the time of their
creation if these remainders will ever become certain.
4. Holder Survival?
Holder of a contingent remainder is normally not required to survive the previous estate.
 Example: OA for life, then to B and his heirs if B graduates from law school, otherwise C &
his heirs.
C doesn’t have to outlive A for his interest to vest in possession. C would be dead, but C’s
heirs could vest in possession if A dies w/o heirs and B doesn’t graduate from law school.
5. Example Analysis
Example: OA for life, then to A’s heirs, otherwise to B, C, & D & their heirs.
i. A has a life estate.
ii. A’s heirs have a contingent remainder, contingent on their being born.
iii. B, C, & D all have contingent remainders contingent on A dying w/o heirs.
iv. O has revisionary interest expectant on A, B, C, and D all dying w/o heirs.
Example: O>A for life, then to such of A’s children as survive A
A=life estate
A’s children=contingent remainders (they must be BORN and they must outlive A)
O=reversion (bc may never vest, A’s children may never be born)
 What happens when A’s first child is born? Nothing, must outlive A
 What happens when no if survives A clause>>becomes possessory, class gift expands with the
addition of more children
 What if A dies, within a week of giving birth?
 O>A then to such of B’s children
 B has 3 kids, then has 3 more after the death of A>>only the 3 children who existed before A died
get to share in the estate (3 born after are outside the class)
 NOT A CLASS GIFT IF YOU NAME THE CHILDREN (if you stop at children, you create class
gift. You name the kids: C, D, E>>then F (born later) gets nothing unless amend will.
 Not specified, they’re born, no survivorship>>as soon as 1st child born>class opens and then if
born before A dies>vested and possessory

C. The Vested Remainder

A remainder is vested if it is created in a known person and possession is not subject to any
condition subsequent. A vested remainder must necessarily become possessory whenever
the prior possessory estate expires. Vested Remainders are NOT subject to the Rule
Against Perpetuities.
 Indestructible

1. There are 3 types of vested remainders: (1) Indefeasibly vested remainders, (2) vested
remainders subject to complete divestment, & (3) vested remainders subject to open or
partial divestment.

i. Indefeasibly Vested Remainders

These are certain to become and remain possessory. Nothing will prevent possession for
happening eventually, and once possession occurs, it will last forever.
Example: OA for life, then to B and his heirs
O= Nothing
A= Life Estate
B= Vested Remainder (Indefeasible)
 B may be dead. A is still alive. Doesn’t make a difference. If remainder is vested,
then she may sell during life or death. Her transferees will take it or intestate
succession. WILL NOT GO BACK TO O.
 Same people that are heirs of B. As to exact persons, may be that it goes back to
O>>but it’s the route.

ii. Vested Remainders Subject To Complete Divestment:

These are created in a known person and not subject to any condition precedent, but
which is subject to a condition subsequent that, if it occurs, will completely divest the
remainderman of his interest.
 Example: OA for life, then to B & heirs, but if C returns, to C and his heirs.
O= Nothing
A= Life Estate
B= Vested Remainder Subject To Complete Divestment
C= Executory Interest
Example: OA for life, then to B for life if she graduates from law school. Assume B
grads:
O=Reversion
A=Life Estate
B=Vested Remainder Subject to Complete Divestment
Example: OA for life, then to B and his heirs provided if B dies under 25, then to C
O= Nothing
A=Life estate
B=Vested remainder subject to defeasible
C=Executory interest (bc condition cuts off the previous vested estate-dies before 25).

iii. Vested Remainders Subject to Open or Partial Divestment

A bested remainder subject to open (or partial divestment) is a remainder created in a
class (or group) of grantees, at least one of whom is presently existing & entitled to
possession as soon as the preceding estate expires, but which is capable of
expansion to include as yet unknown people.
Example: OA for life, then to A’s children who are law school graduates. Assuming
there is 1 graduate…
O = Nothing
A = Life Estate
A’s Law School Graduates = Vested Remainder Subject To Open Divestment
Example: OA for life then to B’s children and their heirs, but if C returns, to C and his
heirs. Assuming B has children…
O= Nothing
A= Life Estate
B’s Children= Vested Remainder Subject to Open & Complete Divestment
C= Executory Interest

a. Class Gifts: Whenever a grant creates an interest in a group of people, it is a

class gift. The group can be any ascertainable body of people, but is most often a
family group (“to my children”). A class is open if it is possible for new people to
enter it, and is closed if new entrants are not possible.

2. Holder Eligibility?
It is not necessary that the holder of the remainder be eligible to take immediate possession
for a contingent remainder to vest, it may never vest in possession.
3. Reversion?
Unless there is a vested remainder in fee simple absolute, the original grantor retains a
reversion. (Since all reversions are vested, there is no such thing as a contingent
reversion).

D. The Transfer of Remainders

Unless restrictions on alienation are imposed at the time of their creation, life estates and
estates for years are freely transferable. The same is true for reversions and remainders.

Rutherford v. Keith
Transfer of Remainders
Facts:
  FCWife for life, then to Sister-In-Law if living and unmarried. If Sister-In-Law dies/marries
before Wife’s death, then at Wife’s death,  Brother (1) & Brother (2). If either brother dies before
Wife, then his portion goes to his children.
 O>wife (Julie)/life, then to M if survives and unmarried, then to surviving Cox bros, children of
bros
 wife=indefeasibly fee simple life estate, contingent remainder
 M=alternate contingent remainder
 Bros=alternate contingent remainder (contingent remainder which never vests or becomes
possessory= contingent upon survival)
 O=reversion
 Kids= the general class is stranger>>could be executory interest of remainder>>follows a life
estate therefore it’s a remainder>>alternate contingent remainder
Sister-in-law married. Wife transferred her life estate to brother (1). Brothers then transfer to Fishback.
When Julia Wife dies, the life estate to brother (1) terminates. Court says property goes to the kids of
brothers because brothers never got interest in the property b/c they did not survive Wife and so their
contingent remainder did not vest. **rights were conditioned on them surviving wife, which they didn’t, so
rights never vested to them and they can’t convey the land. However the 3 rd remainder to the children and
grandchildren of the two bros vested in them the day that Julie Wife died.
Rule:
 FC retains a theoretical reversion because you always have a reversion following a contingent
remainder. If there are 30 contingent remainders, FC still has a reversion!
 If there is a condition, there is a contingent remainder.
Notes:
 If brothers had survived wife, the 3rd party would have gotten the property in fee simple absolute
(Fishback). However, b/c the interest in brother’s never vested, the 3 rd party only got Julia’s life
estate (got it until she dies).
 You can transfer future interests, but you can only transfer what you have.

Notes:
 Joint tenancy= Incorrect to say to A and B, the interest goes to the surviving tenant. A’s interest
disappears, leaving B with what he had before=undivided possession without having to take A
into consideration.
 Undivided interest in prop is key.
 Issue: what’s created? If you say what it is, it’ll never arise. Sloppy lawyers-to A and B, let the CL
of the juris govern.
 A and B in tenants in common, and not as joint tenants=best way to say it
 Can’t create in entirety unless A and B are married
How do you actually end up with decided if each tenant as an undivided tenancy in the whole-they all
can’t develop, or plant>>so what then? Usually grantor hasn’t thought of that, law of cotenancy gives us
the basic
(14)Trusts & Executory Interests

 Future Interests Created In Grantees Continued

A. Executory Interests
Executory interests are future interests created in a transferee that becomes possessory by
prematurely terminating a preceding estate or vested future interest. Only an executory
interest may follow a fee simple estate, since a fee simple estate never reaches an automatic
termination point. There are two types of executory interest: (1) shifting and (2) springing.

Example:O>A for life, and if she reaches the age of 25, to B.

A=life estate
B=contingent remainder (bc contingent on B turning 25)
O=reversion
 -B’s interest not voided under RAP-she’s life in being, plus 21>>still life in being
-future interest=reversion. Rap never applies to reversion

Example:O>A for life, then to B, provided (or but) if B dies under 25 then to C.
A=life estate
B=vested remainder (bc no condition-B can transfer, no contingency of survivorship, As long
as B makes it to 25 then C gets nothing. No condition preceding for B, only a condition for C-
vests to C only if she dies before 25, no condition that B survive A.)
C=executory interest (bc it CUTS SHORT the previous vested interest-key is what the first is)
O=nothing (bc executory interest to C)
Contingent remainder can’t follow a vested interest

1. Shifting Executory Interests

These are executory interests that divest an estate transferred to another by the grantor.
Example: OA but if B returns, to B.
O= Nothing
A= Fee Simple Subject to Executory Limitation
B= Executory Interest (Shifting)

2. Springing Executory Interests

These are executory interests that divest the grantor. A springing executory interest comes
into being only when the grantor creates a possessory interest to take effect in the future
with no intervening estate other than what the grantor already holds.
Example: OA subject to A marrying B.
O= Fee Simple Subject to Executory Interest
A= Executory Interest (Springing)

 The Trust
Future interests are most commonly employed in trusts. (See Deiss)

A. Basics
The central feature of the trust is the division of legal ownership from equitable, or beneficial,
ownership. A person (the trustor or settlor) may transfer property to a trustee who becomes
the legal owner and must manage the property for the economic benefit of the beneficiaries,
who have equitable ownership.
B. Advantages
A trust enables a person to place assets in the hands of a property manager who can
respond to changing conditions by selling assets and acquiring new ones, all for the
advantage of the people who may unknown to the settlor (such as grandchildren yet to be
born). The trust combines flexible property management w/ concentration of assets for the
benefit of identified beneficiaries.
C. Disadvantages
Unless the instrument created specifically reserves the right of revocation, the settler cannot
change his or her mind and revoked the trust.

Deiss v. Deiss
Advantages of the Trust
Facts: Wife is challenging the trust she set up. If RAP applies, she would get some of the interests of the
children. But the Court says the setup does not violate the rule. The sons are named, but the children of
the sons are the problem (RAP-can’t govern who gets the land more than 21 yrs after death). The trust
holds legal title, so the Court doesn’t have to worry about the rule. What the beneficiaries have is
equitable title. The trust document permits the division of ownership into the trust, and therefore the trust
ownership vests immediately.
Rule:
 The RAP doesn’t apply to vested interests.
Notes:
  The theory of trusts is one of divided ownership. The party establishing the trust transfers a
property, real or personal, to one party (the trustee) who holds it for the benefit of another
(beneficiary or cestui que trust). There may be both present and future beneficiaries. The trustee
holds legal title while the beneficiary has equitable title. Only thing that changes is how much
that’s going to be. The property that’s the subject of the trust is the trust res.
 This is a classic generation-skipping trust.
 Other instruments using similar language were found to be a vested interest, subject to
divestment during the life of a life tenant where a remainderman predeceases a life tenant.
 Who’s challenging-parents are challenging their own trust
 Callies: one can be both a trustee and a beneficiary
 RAP is the issue-unborn children able to take shares>>RAP restricts that
 What’s postponed? Full enjoyment is postponed, legal title stays with the trust
 1) expedite transactions 2) hide the true owners= in a transaction, should make any diff, but it
does. Ex: after Disney saw all the development around Disneyland>>he vowed it would never
happen again. He formed a trust and the trust bought the land>> 1) able to buy lots of land 2) no
one realized his intention until he had already bought all the land

 The Marketability Rules

Common law judges devised a number of rules to increase the marketability of land by
eliminating uncertainties of title that inhibited alienability. These rules are considered here. Three
doctrines—destructibility of contingent remainders, Shelley’s rule, and the doctrine of worthier title
—are mostly abandoned today, although enough JDXs cling to them to make it worthwhile. The
principle modern marketability rule is the Rule Against Perpetuities.

A. The Destructibility of Contingent Remainders

At common law, contingent remainder is deemed “destroyed” unless it vests at or before the
termination of the preceding freehold estates. (See Abo)

Example: OA for life, then to A’s children if 21. A dies w/ 3 children, none 21.
Assuming Destructibility, O=Fee Simple Absolute, A= Nothing, A’s children= Nothing
Assuming Non-Destructibility: O= Fee Simple Subject to Executory Limitation, A= Nothing
A’s Children= Executory Interest

1. Modern Rule:
The traditional rule has been abolished in most states. A contingent remainder that has not
yet vested when the estate preceding it has come to an end will not be destroyed.
Instead it will remain a valid future interest and will vest in possession when the condition
is satisfied.
2. The Effect:
The effect of the abolition of the destructibility of contingent remainder rule is to convert what
was once a contingent remainder into an executory interest.
3. Merger:
It is also possible to destroy a contingent remainder through the principle of merger.
Consistent with the abolition of the destructibility rule, most states no longer permit the
destruction of a contingent remainder by this method.

Abo Petroleum Corp. v. Amstutz

Destructibility of Contingent Remainders, First Deed Valid
Facts:
 1908: OB&R for life, then to children alive at time of death, if no children then to estate of B&R.
 B&R=life estate, O=reversion, heirs=contingent remainder
 1911: OB&R.
 B&R then convey to Abo.
 Children of B&R claims fee simple absolute ownership of the property as a remainder Abo claims
they have the deed.
Rule:
 The destructibility rule has been abolished in the large majority of the states by judicial decision
or statute. Where destructibility is abolished, a contingent remainder takes effect if the
contingency occurs either before or after the termination of the life estate.
 Doctrine of Destructibility of Contingent Remainders: If the prior estate terminated before the
occurrence of the contingency, the contingent remainder was destroyed for lack of a supporting
freehold estate. The one instance where this could happen occurs when the supporting life
estate merges w/ the reversionary interests.
Notes:
 In the 1908 deed, B&R have a life estate. At the death of B&R, the interest goes either to
surviving children, or their estate. O, thus retains a reversion b/c of the alternate contingent
remainders (contingent remainders couldn’t vest until death of the daughter holding the life
estate). All B&R can convey at this point is a life estate.
 After 1911 transfer, O transfers its useless reversionary right to B&R. B&R then transfers the life
estate and reversionary right to Abo.
 Abo attempted to claim doctrine of destructibility of contingent remainder, but the court rejects
doctrine, and says B&R children still have a contingent remainder in the land.=doctrine of
destructibility is a relic of the past and ct decides not to apply in NM.
 The parents first gave away a life estate to B&R. Parents retain a reversion, they cannot transfer
anything else but this reversion. The kids have remainders.
 Is there enough to create a survivorship contingency?
 If you have second thoughts, use a will NOT a deed.
 Can only grant what you have, and not more (life estate, lending interest, etc.)
 O>A for life then to B’s heirs-bc don’t know who heirs are until B dies, heirs are contingent
remainder (instead of vested interest)
 Here, grantor says heirs = children
 Both sisters are still alive>>therefore contingent remainder occurs before it can become vested
 B&R transfer life estate and reversionary right to Abo. The reversion never becomes possessory
bc the contingent remainder vests so the children get it.


B. Shelley’s Rule
Originally intended to prevent avoidance of the feudal incidents (death taxes). After the
abolition of feudal incidents the rule survived b/c it improved marketability of land.
1. Rule
If (1) one instrument (2) creates a freehold in real property and (3) a remainder in the
freeholder’s heirs (or heirs of the freeholder’s body), and (4) the freehold estate and the
remainder are both equitable or both legal, then (5) the remainder becomes a remainder
in the free holder.
2. Example Analysis
Example: OA for life, then to the heirs of A.
With the rule, A has fee simple absolute, and O has nothing. (used to be important whether
success to ancestor took by inheritance or by purchase. If one took by inheritance then
all kinds of feudal incidence were due to king. To avoid these incidences(taxes) then
want to convey (instead of inheriting by will). Taxes continued to be collected by Crown.
Without the rule, A has a life estate, the heirs of A have a contingent remainder, and O has a
reversion.
This rule does not apply in HI.

C. The Doctrine of Worthier Title

The scope of this doctrine is very broad. It applies to both real and personal property and to
any kind of future interest. It applies regardless of the nature of the preceding estate and
regardless of intervening future interests in people who are not the grantor’s heirs.

1. Rule
 If an inter vivos conveyance creates any future interest in the heirs of the grantor the future
interest is void. Instead, the grantor retains a reversion.
2. Example Analysis
Example: OA for life, then to the heirs of O.
With the rule, A has a life estate and O has a vested reversion in fee simple The interest in
O’s heirs would be inherited after O’s death. However, if O outlives A, O gets the property
in fee simple absolute and can alienate if he so chooses. (as rapidly as possible, the
heirs will have to take and not through direct transfer which would affect King to take
taxes.)
Without the rule, A has a life estate, O’s heirs have a contingent remainder, and O has a
reversion.
This rule does not apply in HI.

D. The Rule Against Perpetuities

The rule against perpetuities destroys any future interest that cannot be proven will either
vest, or fail to vest, no later than 21 years after the end of some relevant life in existence at
the moment the future interest becomes effective. Unless you can prove that the uncertainty
of ownership will be removed, one way or the other, w/in the rule’s period, the future interest
is void.

Example:O>A for life, but if the property is ever used for sale of alcoholic beverages
O=reversion
A=fee simple absolute (never intended by grantor)
The whole condition that violates the rule is recognized the rule is VOID.

Example:O>A provided the property is ever used for sale of alcoholic beverages
O=future interest>>reversionary interest (reversion, possibility or reverter, right of
reentry)>>not following life estate so not reversion, right of reentry has to do with condition-
but most cts say you must provide for the right of reentry expressly>>IT’S A POSSIBILITY OF
REVERTER>>RAP DOESN’T APPLY TO REVERSIONARY INTEREST (RAP saves us from
problem in remote party)
 Some cts: A gets fee simple absolute
 Some ct: say there should be a fee simple determinable, reversionary interest goes
back to O

Example: OA provided the property is used for a park then to B and his heirs.
O= Possibility of Reverter
A= Fee Simple Determinable
B = Executory Interest Void as Violation of the RAP (bc B and his heirs)

Example: OA and her heirs, but if the property ever ceases to be used for residential
purposes, then to B and her heirs.
O= Nothing
A= Fee Simple Absolute
B= Nothing, Violation of the RAP

Example: OA and her heirs as long as the premises are used for residential purposes, but
if ever used for non-residential purposes, to B and his heirs.
O= Possibility of Reverter
A= Fee Simple Determinable
B= Nothing, Violation of the RAP

1. Common Law Rule

Paraphrasing, an interest is invalid unless it can be said, with absolute certainty, that it will
either vest or fail to vest, before the end of a period equal to: (1) a life in existence (and
 specified in the document creating the interest) at the time the interest is created plus (2)
an additional 21 years.

2. Applicability?
i. Applicable to contingent remainders, vested remainders subject to open, and
executory interests.
ii. NOT applicable to fee simple (all three), life estate, reversionary interests, and vested
remainders.

3. Remorseless Application
RAP was legendary for the remorseless way in which it was applied.

4. Wait And See Statutes

Many states reject the common-law principle that if a scenario could be imagined whereby
the interest might vest too remotely, it is invalid regardless of how things actually turn out.
These states have adopted “wait and see” statutes, by which if the interest actually vests
within lives in being at the time of creation plus 21 years, the fact that things might have
worked out differently is irrelevant.

5. The Rule Against Perpetuities & Executory Interests

Since executory interest, possibilities of reverters, and rights of entry are inherently
contingent future interests—there is no guarantee that they will ever vest in possession—
it would seem logical that all would all be subject to the RAP. However, first party future
interest, whether vested or not, are not subject to the RAP. The RAP does apply to
executory interests, and as a consequence, operates as a major limitation to their
use. (See Fletcher)

Fletcher v. Ferrill
Rule Against Perpetuities & Executory Interests
Facts: OA upon condition it is used as a orphanage continually, if ends then to O’s heirs. Fletcher has a
life estate to himself, then to the lodge as long as it is used as a school, then it reverts to Fletcher’s heirs.
Court says there is a choice between a possibility of reverter in Fletcher or an executory interest in
Fletcher’s heirs. If it is possibility of reverter, RAP doesn’t apply. If it is an executory interest, RAP applies.
Rule:
 A possibility of reverter is an interest that can be devised by will. When decedent stated,
“property shall revert to the heirs of the said JW Fletcher,” use of “heirs” in this context (where
he also reserved a life estate in himself) was one of limitation (same as if he said, “revert to
grantor and his heirs” = grantor).
 Even if SCt found that it was a word of purchase, Ps would get estate by executory interest,
which would be void due to the rule of perpetuities.
Notes:
 Retention by the grantor of a possibility of reverter doesn’t offend the rule against perpetuities,
even though the reverter may take place in the distant future.
 Words of purchase: defines who receives an interest.
 Words of limitation: defines the estate they receive.
 Good indication in depending on how a ct treats a future interest and who ends up with the
property
 Shall revert “to the heirs”=issue bc how do we treat, what does heirs mean?
 Contesting: wife and heirs (nieces and nephews) –executory interest: going to strangers
 Likely that he meant to convey to his heirs, and didn’t mean for the mixup and retain a
reversionary interest.
 If it was an executory interest then RAP applies>> and it goes to the Lodge
 RAP doesn’t apply to reversionary interest
 1) intestate succession 2) will 3) transfer
  What has he done with it? Created Residuary divesee in wife- catchall –she gets everything not in
the will, Ct interprets it as reversionary interest.
 What happens if the ct should have found the interest created is executory interest? Lodge
renounced interest

 General Overview of Estates

A. Fees and Related Present/Future Interests

Related
Present Possessory Which
Defeasibility Future Examples
Interest Party?
Interests
Grantor OA so long as the land is
Fee Simple Possibility of
used for agricultural
Determinable Reverter
purposes.
Grantor OA but if the land is used
Non-Defeasible Fees (Can’t Fee Simple Subject Right of
for anything other than
be extinguished w/o to Condition Entry/Re-
agriculture O has the right to
permission) Subsequent Entry
re-enter and take possession.
Fee Simple Subject 3rd Party OA so long as she does not
Executory
to Executory get married, but to B if she
Interest
Limitation does.
Defeasible Fees (Subject to Reversion Grantor OA for ten years.
Estate for Years
limitation which may divest Remainder 3rd Party OA for ten years, then to B.
which may divest present Reversion Grantor OA for life.
Life Estate
interest) Remainder 3rd Party OA for life, then to B.

B. Future Interests Retained By Grantees

Future Interests Retained By The

Remember Example
Grantee
OA for life, then if B graduates from law school to
Contingent Remainders
her.
After Alternative Contingent OA for 10 years, then B if she does not marry, if so
Life Estates Remainders then to C.
OR Vested Remainders OA for life, then to B.
Estates for Vested Remainder Subject to OA for life, then to the children of B (assuming B
Years Open already has a child).
Vested Remainder Subject to OA for life then to B, but if A stops growing corn on
Divestment the land, then to C.
(15)Rights of Common Ownership: Concurrent Estates
American law has long permitted 2 or more individuals to own land concurrently. Concurrent owners have
equal rights to possess and use the same parcel of property, and the general principle applies to personal
property as well.
 Forms of Concurrent Ownership
There are 3 types of co-tenancy: (1) joint tenancy, (2) tenancy in common, and (3) tenancy by the
entirety.

A. Joint Tenancy
Joint tenants own an undivided share in the same interest in either real or personal property,
but the surviving joint tenant owns the entire estate. This right of survivorship is the
hallmark of joint tenancy, setting it apart from tenancy in common. Any number of people can
be joint tenants. Upon the death of one joint tenant, the share held by the remaining joint
 tenants increases proportionately. When a joint tenant dies, his entire interest dies w/ him
-other parties don’t require interest of co-tenant, it disappear, leaving only the interest of the
others) .

1. Four Unities of Joint Tenancy

All joint tenants must take their interests: (1) at the same time; (2) under the same instrument;
(3) with the same interests; and (4) with the same right to possession of the entire
property. At common law a joint tenancy could not be created without the four unities
being satisfied.
i. (1) Time
The joint tenants must receive their interests at the same moment in time.
ii. (2) Title
All joint tenants must receive their interests under the same instrument: a deed, a will, or
a decree quieting title by joint adverse possession.
iii. (3) Interest
Each joint tenant must have the identical interest in the property. This means two things:
(1) each joint tenant must have the same share of the undivided whole, and (2) each
joint tenant must have the same durational estate.
iv. (4) Possession
At the creation, each joint tenant must have the right to possession of the whole property.
After creation, joint tenants may agree among themselves to divide possession, or to
deliver exclusive possession to one joint tenant. So long as the arrangement is
consensual, it amounts to a voluntary waiver of a joint tenant’s legal right to possess
the whole.
2. Creation of Joint Tenancy
Ambiguous grants may not create a joint tenancy. Although the common law presume that
grants created joint tenancy, every American state today presumes that a conveyance to
two or more people creates a tenancy in common, unless there is clear evidence of intent
to create a joint tenancy. The words “and the rights of survivorship” indicate joint tenancy.
3. Severance of Joint Tenancy
A joint tenant may destroy the joint tenancy at any time by conveyance of the joint tenant’s
interest. This is usually done by conveyance. This severs the joint tenancy and creates a
tenancy in common in its place.
i. Conveyance
If a joint tenant conveys his interest to a 3rd party or to another joint tenancy, the joint
tenancy is severed as to that interest. (See Giles)
A conveyance includes a K to convey that is specifically enforceable, b/c the buyer under
such a K has equitable title to the property. Severance occurs at the moment the K is
made.
Example: O>A and B-undivided half interest in the whole

Giles v. Sheridan
Joint Tenancies & Tenancies in Common
Facts: Joint tenants are Minnie Giles, John Sheridan, and Helen Sheridan. Minnie Giles transfers 1/60
(1/20 of 1/3) future interest to nephew Harley. This transfer constitutes an act of severance. Helen/John
and Minnie Giles become tenants in common (they were previously joint tenants at the signing of deed).
What’s the advantage to Minnie by eliminating rgith of survivorship of co-tenancy=transfer to anyone else.
Helen and John are still joint tenants with each other. The Sheridans can now not take any of Gile’s
property b/c the joint tenancy is terminated (Gile’s share would go to her heirs). Helen dies and John gets
all 2/3 (undivided interest) of the joint tenancy. Since all held joint tenancy, all were responsible for an
equal portion of the mortgage.
Rule:
 Where a conveyance of property was made to two or more persons and the instrument is silent
as to the interest which each is to take, the rebuttable presumption is that their interests are
equal.
Notes:
 An estate in joint tenancy can be destroyed by an act of one joint tenant which is inconsistent with
joint tenancy and such act has the effect of destroying the right of survivorship incidental to it.
 If one of two joint tenants disposes of his interest by conveyance inter vivos, the other joint tenant
and the grantee become tenants in common.
 If one of three or more joint tenants conveys his interest to a 3rd person, the 3rd person becomes
a tenant in common, instead of a joint tenant, although the others remain joint tenants between
themselves.
 Each joint tenant has the right to convey her interest. A conveyance of the tenant’s entire interest
or share severs the joint tenancy with respect to that share. Either a conveyance to a third person
or to another joint tenant severs the share conveyed from the joint tenancy. A deed to a third
person severs the joint tenancy even though the other joint tenant does not know about the deed.
 In most jurisdictions a lease does not sever the joint tenancy, though this is apart from the old
common law rule.
 A joint tenancy expires on the co-tenants death. Therefore you cannot pass an interest as a joint
tenant in a will. When Helen died, her interest went with it. Therefore, John became co-tenants
with Minnie. John holds 2/3. Giles owns 19/60. Harley owns 1/60.
 What’s the advantage to Minnie by eliminating right of survivorship of co-tenancy=transfer to
anyone else.
 Converted the co-tenancy from one of joint tenancy>>co-tenancy, Minnie can leave to intestate
succession or sell
 To transfer interest need both signatures
 Main takeaway: RIGHT OF SURVIVORSHIP-easy to sever joint tenancy
 Only if John and Helen devise by will for their interest go to Minnie>>intestate succession>.goes
to kids, if not kids back to the, then to collateral lineage
 What if Minnie leaves her whole interest >>joint tenancy takes preference. At death, interest
vanishes.
 Buying it as joint tenants- go around a will, don’t need to deal with probate.
 What if Minnie mortgages her prop? >>

ii. Mortgage
JDXs differ as to whether a joint tenancy is severed by the act of one joint tenant
mortgaging his interest. Differences usually depend on whether the JDX adheres to
the lien theory or the title theory of mortgages.
a. Title Theory of Mortgages
Theory holds that a mortgage effects a transfer of legal title, subject to equitable right
of the mortgagor (the borrower) to reclaim title by paying off the loan secured by
the mortgage (equity of redemption). As a result, a mortgage by one joint tenant
had the effect of severing the joint tenancy b/c the unity of interest is destroyed.
After the mortgage, the former joint tenants would become tenants in common.
b. Lien Theory of Mortgages
Theory holds that the mortgagee (lender) only has a lien against the property (an
inchoate right to seize title if the loan is not paid). A mortgage by one joint tenant
makes no alteration to title and thus does not sever joint tenancy. Bank only gets
equitable interest in prop to be satisfied at end of mortgage, NOT A TRANSFER
OF LEGAL INTEREST IN PROP, only creation of lien>>doesn’t sever joint
tenancy
iii. Lease
Does the JDX see lease as contractual or as property of the leaseholder?
At CL, if 1 joint tenant leased his interest the joint tenancy was severed. The unity of
interest was destroyed; b/c the leasing joint tenant retained only a reversion. The
lease, however, was valid.
Most JDXs today do not regard a joint tenancy as severed. The survivorship right
continues, but the problem is presented of whether the lease survives the death of
the leasing joint tenant. Most JDX say “no.”
iv. Agreement
 A joint tenancy can be severed by agreement, so long as the intention is clearly
manifested. This usually occurs in the context of marital dissolution.
v. Operation of Law
There are two recognized instances in which the law operates to sever a joint tenancy
even in the absence of a voluntary act that implicates the four unities. (1) Criminal
homicide & (2) Simultaneous Death.

B. Tenancy in Common
Tenants in common own separate but undivided interest in the same interest in property.
Conceptually, each tenant in common owns the entire property, but must necessarily share
that ownership w/ the other tenants in common. Much of the law of concurrent ownership is
deigned to mediate the friction that can arise from co-ownership of the same article.

1. Transferability
A tenancy in common interest may be alienated, devised, or inherited separately from the
other tenancy in common interests. Unlike joint tenancy, there are NO survivorship rights.
2. Presumption of Tenancy in Common
By statute of judicial decision, a conveyance of real property to 2 or more persons who are
not married to each other is presumed to convey a tenancy in common. That presumption
is rebuttable. Property that passes by intestate succession to 2 or more heirs is always
taken as tenants in common.
3. Rights to Possession
Each tenant in common is entitled to possess the entire property. In practice, this means that
a tenant in common can possess the entire property if no other cotenant objects.
4. Unequal Shares & Different Estates
Tenants in common may own unequal shares and different estates.
5. Heirs
Apart from a conveyance directly creating a tenancy in common, a tenancy in common can
result from operation of law, including the intestacy statute: if the intestacy statute
specifies that two persons are to take an equal interest as co-heirs, they take as tenants
in common.

C. Tenancy By The Entirety

A tenancy by the entirety is a form of joint ownership available only to husband & wife. Like
joint tenancy, each tenant by the entirety has a right of survivorship.

1. Doctrine of Coverture
Under the common law as it existed prior to the early nineteenth century, husbands and
wives were treated as single entities at law with the legal personality of married women
submerged in that of the husband. The husband had complete control over the wife’s real
property during the period of their marriage, and this control extended to property owned
by the wife prior to the marriage as well as that acquired during it.

2. No Severance
A key attribute of tenancy is that it may not be severed. Neither tenant acting alone can
destroy tenancy by the entirety. Neither tenant may obtain partition, nor can either
spouse acting alone, convey the entire estate. The right of survivorship is indestructible
so long as the marriage remains intact. (See Robinson)

Robinson v. Trousdale County

Marital Property, Tenancy By Entirety
Facts: County wants land for widening road, husband deeds land to the county by himself in fee simple.
Husband and wife bring suit for damages for taking of real estate owned by them as tenants by the
entirety. The Court abolished common law coverture and held that each tenant had a joint right to the use,
control, and rents of the property and was unable to sell the property w/o the consent of the other tenant.
The Court also upheld the order directing the money to be paid to the wife immediately instead of holding
it until the husband died (b/c if the wife died first, he would get that money).
Rule:
 Each tenant shall have a joint right to use, control, incomes, rents, profits, usufructs and
possession of property so held, and neither may sell, encumber, alienate or dispose of any
portion thereof except his or her right of survivorship, w/o the consent of the other.
Notes:
 Husband can convey his contingent future interests—if the wife dies husband will retain all of the
property and can convey this property contingent on the fact that he is the one who survives.
(called expectancy)
 What strikes you in the lawsuit by the parties as most unfair?- Husband tries to convey the entire
interest.
 County argues: we paid the husband
 Husband and wife:
 2 claimants for same piece of prop:
 If this was joint tenancy-right of survivorship-undivided half interest
 Callies: “void transaction”-voidable at the instance of one of the parties
 Who’s most likely to complain about this transaction>>wife bc husband is acting as if he has the
right to convey
 Ct deciedes: wife gets monetary damages, County has the land,
 Could have put the parties back to what they were before-they get land back bc it was arguably
fraudulently obtained…but didn’t.
 In this case, if the husband survived the wife

 Sawada v. Endo (HI 1977)

◦ Sawadas injured by Mr. Endo. Mr. Endo knows they’re probably going to come after
property (bc debt was $25K), so Mr. and Mrs. Endo convey property to children as a gift.
Sawadas say that transfer to the sons need to be set aside b/c fraudulent transfer to avoid
Sawadas.
◦ Was H & W’s transfer of T by E property to son fraudulent as to judgment creditors?
◦ Issue: Are creditors of H entitled to reach property held as T by E?
◦ Court says, need to figure out if creditors even have a right to reach this property to get
money from husband. Court says, which group do we adopt? Group I and II would give
Sawadas right to get land. Court adopts Group III, so Sawadasa cannot reach this
property.
 Sawada v. Endo – creditors cannot collect individual debts from property owned in an estate by the
entireties during the join lives of the spouses – Married Woman’s Property Act protects wife’s rights in
property.
 Dissent by Justice Kidwell
 Raises slightly diff issue
 What happens if creditors can’t reach this then there’s no worry about a fraudulent transfer
 What’s the nature of the tenancy in HI? Can either side alienate their interest in prop? NO, since
they can’t there’s no defrauding of the creditors.
 Can they transfer anything? Can they transfer their expectancy? Yes, they can transfer their
expectancy, doesn’t rise to the state of future interest, that expectancy is transferable.
 Why limit tenancy in common today? (given that there are statutory decisions that make husband
and wife equal)- yet ever state recognizes tenancy in the entirety

3. Termination
A tenancy by entirety is terminated by (1) by death of a spouse, (2) divorce, or (3) joint action
of both spouses to convey the property held in tenancy by the entirety. Upon divorce,
 most states convert a tenancy by the entirety into a tenancy in common, but a few
inexplicably convert it into a joint tenancy.

 Rights & Obligations of Concurrent Owners

The rights & obligations of co-owners are the same regardless of the type of concurrent
ownership. The exceptions are the rights and duties inherent in the type of concurrent ownership
(ex. right of survivorship).

A. Partition
A joint tenant or a tenant in common may demand partition of the property at any time and for
any reason, or for no reason at all. A tenant by the entirety may not demand partition—the
effective remedy is divorce. Absent agreement among the parties, a suit in equity
accomplishes partition. The court will order either (1) physical division of the property or (2)
sale and division of the sale proceeds.

B. Rents, Profits, Possession

Each co-owner has the right to possess the entire property and no co-owner may exclude his
fellow co-workers. If co-owners cannot agree on how they share possession, default rules
apply.

C. Accounting for The Costs of Ownership

D. Adverse Possession

McKnight v. Basilides
Rights of Concurrent Tenants
Facts: ∆ married Alice King (w/ 2 children πs). Family acquired 2 pieces of property—big house & little
house. Alice died and estate was never probated. ∆ was in possession of the property and paid taxes,
lived in big house, & rented out little house. Court says rent from little house must be split & paid to co-
tenants b/c they all have a right to live in the house. As for big house, the court goes against the majority
common law rule (saying it’s inequitable), and says that πs get what it would have been had the big
house been rented out too (he had been living there for several yrs and never paid his co-tenants, they
deserve rent $). Not AP-not sufficient to establish AP.
Rule:
 An occupying cotenant cannot oust other tenants by adverse possession b/c they are all
cotenants. A court will not imply adversity w/ cotenants—if one says they are adversely
possessing (that party knew I was AP) and the others do nothing, only then can the 1 st cotenant
get everyone’s interest after 20 years.
 Generally, the entry of a co-tenant on the common property will not be considered adverse to
the others. Rather, such acts will be construed in support of the common title.
Notes:
 At common law, one tenant in common who occupied all or more than is proportionate share of
the common premises is not liable, because of such occupancy alone, to the co- tenants for rent
or for use and occupation.
 The court holds against the common law rule, saying it isn’t equitable to allow one co- tenant to
reap a financial benefit by occupying property owned in common without paying for his use of the
part owned by the co-tenants.
 At what point in time does ct resolve otherwise competing interest of co-tenants=tenancy in
common or
 Only at partition that this prop is divided into parts, otherwise still talking about undivided interest
in the whole
 If just a simple partition>>how many parts and what’s the fractional shares? 4 parts (2 children, 1
child, Basilides)>>husband=1/2, wife=1/2 split 3 ways
 The other co-tenants (children) suing Basilides for a cut of the income
  Ct decides not to apply the CL rule bc it’s not equitable
 What if Basilides made repairs on premises? Everything happens at partition (he can get a setoff
at partition)

(16)Marital Property & Condominium

 Concurrent Ownership in Condominiums

The condominium consists of (1) fee ownership (or long-term leasehold) of an individual unity
(usually defined to include the interior perimeter surfaces of the unit) and related auxiliary space
(ex. parking or storage spaces), and (2) a fractional or percentage tenancy in common interest w/
all other condominiums owners of the common areas (walls, roof, foundation, grounds, stairs,
etc…)

A. Owner’s Association
Once the condo units are sold the owners are members of an association empowered to elect
a board of directors to run the association, usually by hiring a manager or making important
decisions about repair, maintenance or improvement of common areas, and promulgating
rules for the use of owners’ units and common areas.

B. No Right to Partition
Condominium owners are almost always prevented by statute from either forcing a partition of
the common areas or from transferring their interest in the common areas separate from their
interest in their primary unit.

C. Responsibility For Common Areas

Pursuant to condominium by-laws, each condominium owners is responsible for his or her
proportionate share of the cost of maintaining or improving common areas.

Dutcher v. Owens
Concurrent Ownership in Condominiums
Facts: Condo owner sued by lessee for faulty light fixture in common area. Court says Condo owner can’t
be held jointly and severally liable as tenants in common w/ the rest of the condo owners b/c liability
should reflect the degree of control—with condo associations, individual condo owners don’t have much
control over common areas, so they can’t be held jointly and severally liable. Follows leg intent: duty to
pay not allocated in Act
Rule:
 The liability of a condominium co-owner is limited to his pro-rata interest in the regime as a
whole, where such liability arises from those areas held in tenancy-in-common.
Notes:
 A condominium is an estate in real property consisting of an undivided interest in a portion of a
parcel of real property together with a separate fee simple interest in another portion of the same
parcel.
 Condominium ownership is the merger of 2 estates of land into one: the fee simple ownership
of an apartment or unit in a condominium project and a tenancy in common w/ other co-owners
in the common elements.
 Common elements consist of foundations, bearing walls and columns, roofs, halls, lobbies,
stairways, and entrances or exits or communication ways.
 The condominium association or council is a legislatively created unincorporated association of
co-owners having as their common purpose a convenient method of ownership of real property in
a statutorily created method of ownership which combines both the concepts of separateness of
tenure and commonality of ownership.
 IN HI: HORIZONTAL PROP REGIME, possible to hold homes, subdivided into lots, each prop
holds fee simple to the house and lot it’s on
 What does one avoid? Taxes, plat situations>>no conditions (avoid all subdivision conditions)
 j
Hoak v. Hoak
Other Forms of Marital Property
Facts: The husband was attending med school. Wife received BA, but worked in field outside her degree
to make more $. She was supporting her husband, he worked odd jobs. She wants to recover from his
MD.
Rule:
 Professional degree i personal to the holder and cannot be apportioned. Marital property is a
statutory creature which cannot fall within traditional property concepts.
Notes:
 When want to divide prop must first decide what worth. But the worth of the MD degree is
speculative. Changes in the ways one treats certain diseases, MD can skyrocket or plunge in
value.
 It is nontransferable. Doesn’t have the attributes of reg property (like house, property) all things
that can be appraised.
 If spouse expected a higher standard of living for the fam bc of the MD degree then
reimbursement alimony
 Is it appropriate at that pt to say bc you have to pay alimony for 25 yrs as result of divorce that
you will be obligated to stay in that profession >>ct doesn’t want that
 This is not marital property. Not all states agree. It is reimbursement alimony whatevier
the actial amount of contributions the relatve values of the spouses contirbutions. There
is an aspect of the degree leading to a higher income. So this is an interesting situation, a
way of getting reimbursement without turning the law of property. This raises two or 3
other issues. WE are a community property state, meaning that all earnings and prop
acquired with those earnings during a marriage are jointly owned by souses in undivided
shares of equal value. Upon dissolution of the marriage by death or divorce, the surviving
spouse is automatically entitled to a 50% share of community property. Anything you
bring into marriage other things being equal that is not part of the community property.
Some courts say that the principle.
(17)Landlord & Tenant, Sublease & Assignment

Anderson Drive-In Theatre, Inc. v. Kirkpatrick

Lease for Intended Use
Facts: π leases land from ∆ farmers to build a drive-in theater. Π signed the lease for 25 years. Π tests
the land after the fact and finds it cannot support the drive-in. Nothing in the lease expressly said the land
would be suitable. There is no implied warranty of suitability either.
Rule:
 There is no implied warranty that leased premises are fit for the purposes for which they are let;
that they are fit for the particular use for which they are intended: that they shall continue to be
fit for the purpose for which they were demised.
Notes:
 π could have used due diligence to examine the property beforehand and there is no evidence
that ∆ stopped π from doing so.
 Exception: when there are concealed defects known to the landlord that are not discoverable by
the tenant’s investigation.
 Exception: where the landlord makes misrepresentations about matters peculiarly w/in his own
knowledge or when the landlord fraudulently represents the premises to be suitable for the
tenant’s use although it contains latent defects rendering the property unsuitable.
 The burden of proof for an action based on fraudulent concealment is with the plaintiff.
 Everything in these cases could be solved with a lease.
 Not all the law of tenants have been taken over by Ks
 How does the landlord-tenant sitch affect what Drive-In wants?
 Anderson is in the business of drive-in theatres
  Caveat emptor-buyer beware: Ct says: it’s a lease and we will NOT imply a warranty that the
premises be usable for what you wanted to do with it
 Commercial lease in this case, would have been diff if it was a residential
 General rule: NO IMPLIED RULE FOR FITNESS OF PROPERTY FOR COMMERICAL LEASE
 How could tenant improved his position? Checked out the land beforehand

Adrian v. Rabinowitz
The Duty to Put the Tenant in Possession
Facts: ∆ Rabinowitz leased a store to π, to commence on a certain date. But at the beginning of the lease
term (after payment of first month’s rent), ∆’s prior tenant was holding over. Ct applies the English rule,
affirms for Plaintiff.
Rule:
 English Rule (Majority): Where the term is to commence in the future, there is an implied
covenant by the lessor that the premises shall be open to the lessee’s entry, legally and
actually, when the time for possession under the lease arrives. Tenant can terminate the lease
and has a cause of action against the landlord.
 American Rule (Minority): The landlord has no duty to deliver actual possession when the time
for possession arrives under the lease. If it’s not delivered, tenant has a cause of action directly
against anyone wrongfully in possession, but not against the landlord. Also the tenant cannot
terminate the lease.
Notes:
 Court says ∆ has an obligation to deliver physical as well as legal possession on the day of the
commencement of the lease term. This is what the parties bargained for and the lessor has the
controlling interest in the property until the point lease takes effect.
 Uniform Residential Landlord-Tenant Act (URLTA): codified a modified version of the English
rule. Difference is that tenant can also bring action wrongful possessor.
 Hold over: how long is a tenant able to hold over?
 Hold over tenant hasn’t done anything (paid $) to stay there, he just cont to occupy the premises
 Trespasser-enters and is on prop without permission (not the holder over tenant bc at one pt he
had permission)
 Sue landlord bc he has deeper pockets
 Landlord holds the reversion bc previous estate has expired (leasehold estate)

Jaber v. Miller
Sublease & Assignment
Facts: π leases property from owner for 5 years, pays $200/month. Π then leases to Norbert, Norbert
leases to ∆. ∆ can’t make the payments so he agrees with π to split the payments. Fire destroys the
property, ∆ claims he had a sublease and therefore the sublease terminated when the primary lease
terminated. Π argues it was an assignment and π transferred everything to Norbert who transferred
everything to ∆. Court says according to the intent of the parties, there was no sublease—intent was to
retain no interest in the property and to assign it all.
Rule:
 English Majority Rule: If the instrument purports to transfer the lessee’s estate for the entire
remainder of the lease, it is an assignment, regardless of its form or of the parties’ intention. If
the instrument purports to transfer the lessee’s estate for less than the entire term—even a day
less—it is a sublease, regardless of its form or of the parties’ intention.
 Minority Rule: The intention of the parties is to govern in determining whether an instrument is
an assignment or a sublease (the duration of the primary term is a factor to consider but it
shouldn’t not be the sole consideration.)
Notes:
 Under the common law, to have an assignment, the transfer has to give all rights, title, and
interest to the other party. If a right of entry is retained, the original lessee made a sublease.
Some courts have mitigated this rule by looking at the intention of the parties—basically, the
intent of the parties governs as to whether there is a sublease or assignment (very fact-sensitive).
  An assignment created a privity of estate between the assignee and the landlord, giving the
landlord a legal cause of action against an assignee, but not against a sublessee b/c the landlord
only has privity w/ an assignee. The landlord always remains in privity w/ the assignor (original
lessee) regardless of sublease or assignment.
 Courts have found tenants reserved interest sufficient to create a sublease when: (1) the tenant
reserved a right of re-entry, (2) the transfer contained a covenant to surrender possession to the
original tenant at the end of the sub-tenant’s term, (3) the sub-tenant had to pay a different rent
than in the original lease, and (4) the transfer was made on different terms or conditions from
those contained in the main lease.
 At common law, tenants had a presumptive right to transfer their interests to a 3 rd party.
 Leases commonly contain a clause allowing a landlord to withhold consent to a sublease or
assignment. The majority rule doesn’t require a landlord to give reason for withholding consent.
 A minority of states has statutes providing that landlords must give good reasons for rejecting
potential subtenants.
 Only way lessee can get out privity is by release from LL.
 Miller doesn’t want to pay rent bc the building burned down
 Covenant in the lease favors tenant-if it burns down, then you’re released from lease.
 Norbert originally signed promissory notes for poss of prop. >>paying Jaber for right to occupy
prop
 Promissory notes have nothing to do with original transaction (700 every 4 months)-entirely diff
transaction
 1st obligation-pay 700 to Jaber no matter if it’s a sublease or assignment
 If SUBLEASE-Does Jaber still have an obligation to owner?-200/month
 Can landlord sue Norbert for $? NO, NO LEGAL OBLIGATION BETWEEN THEM, only between
Jaber and Norbert.
 HOWEVER IF ASSIGNMENT: Norbert is obligated to owner
 Between Norbert and Miller=looks like he’s assigned all his right title and interest
(18)L & T: Duty/Repair & Construction Evictions and Warranties

Reid v. Mutual of Omaha Insurance Co.

Abandonment/Surrender & Acceptance
Facts: Mutual ∆’s rented office space from π Reid to conduct an insurance sales business. Intermountain
moved into the space next door. Mutual complained and eventually moved out. Reid renovated and
rented to Intermountain. Intermountain went bankrupt and moved out. Reid sued for rent owed. Mutual
argued only liable for rent owed between last rent payment and reletting to Intermountain, or even if
Mutual was responsible for rent after Intermountain left, Reid had a duty to seek replacement tenant to
mitigate.
Rule:
 A landlord who seeks to hold a breaching tenant liable for rents also has an obligation to take
commercially reasonable steps to mitigate its damages by reletting the property to another
lessee. The landlord’s effects will be judged under an objective commercial standard of
reasonableness.
 This contravenes the traditional rule, where landlords were not required to relet the premises or
mitigate damages.
Notes:
 Landlord must make a good faith effort to mitigate its damages (relet the prop)
 Tenant is entitled to enjoyment, landlord wants rent
 Independent: no relationship between what the tenant and landlord gets. Enforcement of
one covenant is irrelevant to another covenant
 Ct: No constructive eviction
 Mitigation affects policy of the present day (benefits economies, keeps with policy of
disfavoring contractual penalties)

Petroleum Collections, Inc. v. Swords

Constructive Eviction
Facts: Texaco leased to D Swords. The gas station loses b/c if you’re claiming Constructive Eviction, and
it’s that bad, and you don’t leave, you’ve got a conflict; you better have left. It’s not gonna work to
sublease it to a 3rd party b/c you still have a remaining interest
Rule:
 Landlords failure to fulfill obligation to repair or replace essential structure or provide a
necessary service can result in a breach of the covenant if the failure substantially affects the
tenant’s beneficial enjoyment of the premises.
 The Covenant of Quiet Enjoyment isn’t broken until there’s been an actual or constructive
eviction.
 If you are claiming constructive eviction, you need to leave (within reasonable time) and you
cannot stay and use premises.
Notes:
 An actual eviction takes place when the tenant is physically dispossessed of the property.
 A Constructive eviction occurs when the act of molestation merely affects the beneficial use of the
property, causing the tenant to vacate the premises.
 IMPLIED COVENANT-quiet enjoyment not to be adversely affected by the landlord
 Can’t do the business as we’d planned to do it, Texaco should have known that we needed it in
order to proceed
 What has the tenant done and landlord is upset about? Without rental payment>>11 months
 What gives the tenant the right to not pay rent? Constructive eviction-not on the prop. Can’t fail to
pay rent claiming to be constructively evicted if you stay on the premises.
 What’s the basic link that judge Wright does? Join old theories and old concepts and come up
with new theory.

Crechale & Polles v. Smith

Holdover Tenants
Facts: Tenants of property remained after expiration of lease despite the landlord telling them to vacate. Once the
landlord accepted a rent payment, tenants treated lease as a month-to-month lease, which landlord argued was
actually a renewal of the full five-year term. Landlord sued to enforce a new one-year lease.
Rule: Once the landlord accepts rent from a tenant at the end of the lease, he effectively agrees to a month-to-
month extension of the lease.
Notes:
 When a tenant continues in possession after the termination of his lease, the landlord can elect to evict
the tenant, treat him as a trespasser or hold him as a tenant.In this case, the Plaintiff sent a letter to the
Defendants, which effectively treated them as trespassers. The Plaintiff cannot at a later date change his
treatment of the Defendants to the status of a tenant.When a landlord elects to treat a tenant as a
trespasser, but accepts rent, he in effect agrees to an extension of the lease on a month-to-month basis.
 Established a month-to-month tenancy
 Landlord cashed the check- affirmative action as a landlord- check is only for month of Feb.
 How cts trat what used to be a pure real prop matter-installment payment, purchase of a leasehold.
 What’s wrong with saying you started installment payment (why tenant not want to do that)? – wants it
to be short pd of time.
 Ct decides month to month tenant>he owes and resets every month.

 Tenancy at Sufferance
A. Occurs when a tenant refuses to relinquish possession of the property when the lease
expires.
B. The lessee is said to be a “hold over” tenant”
C. At common law, the landlord had to options:
1. (1) evict the tenant and sue for damages, or
2. (2) consent to the creation of a new lease.
 D. How states deal w/it: allow the landlord to collect double rent during the hold over
period, while other permit a limited hold over period w/o penalty; convert expired term
into a periodic tenancy.
 Note: a hold over tenant is not a tespasser; didn’t enter illegally
 Once a landlord elects to treat a tenant as a trespasser and refuses to extend
the lease on a month-to-motnh basis, but fails to pursue his remedy of ejectig
the tenant, and accepts monthly checks for rent due, he in effect agrees to an
extension of the lease on a month-to-month basis.
 The landlord doesn’t have a remedy at law to evict a tenant;
(19)L &T: Housing Codes & Rent Control
(8)
 Contemporary Issues in Landlord—Tenant Law
(9)
Javins v. First National Realty Corp.
Implied Warranty of Habitability
Facts: π complains that landlord breached the warranty of habitability by failing to make repairs to
plumbing, electricity, structural, etc. π says the breach relieves him of the requirement to pay rents, but
still wants to remain on the property.
Rule:
Housing regulations imply a warrant of habitability, measured by the standards which they set
out, into leases of all housing that they cover.
Court says for residential leaseholds, you can claim constructive eviction by breach of implied
warranty of habitability and still remain in possession of the property.
When the landlord breaches the implied warranty of habitability, the
tenant has a legal right to stop paying rent.
Notes:
Under the common law, the lessor was absolved of all obligations to repair.
Under the implied warranty of habitability, b/c a lease specifies a certain period of time during which
the tenant uses the dwelling for shelter, the tenant may legitimately expect that the dwelling is fit
for habitation during the period of the lease. When there is a breach of implied warranty of
habitability, there is constructive eviction, but the tenant does not have to move out.
The implied warranty of habitability generally applies only to residential leases, not commercial.
The tenants’ obligation to pay rent is no longer independent of the landlord’s obligation to repair
defects. Tenants may withhold rent or deduct the cost of repairs from the rent.
 Since the lessees continue to pay the same rent, they are entitled to expect that the landlord
would continue to keep the premises in their beginning condition during the lease term. Also
there is a hughe inequality in bargaining power between landlord and tenant/ The severe
shortage of housing increases the landlords bargaining power and escalates the need for
maintaining and improving existing stock.
A housing code is continually enforceable.
Policy Reasons: Consumer protection/contract
As soon as K created, warranty exists
Doesn’t matter what premises was like when tenant took it over in the first place, If it becomes less
habitable later, the tenant no need pay bc that duty to ensure habitability still exists.
Housing regs are an exercise of police power (same as zoning, ordinances, etc.)-the purpose of why
state getting involved: health and safety. Better example of appropriate use of police power for
zoning.
Housing code deals with: adequate ventilation, occupancy, number of doors and windows, pest
control, proper plumbing and electric>>housing code applies to any house
Diff from zoning, enforcement doesn’t end
How does one enforce a housing code? People can report it if breach of implied warranty of
habitability
inspections=6 on Oahu>>where do you send your inspectors?>>Kalihi, Nanakuli, Waianae.
 Environmental justice-controversy in the literature over sending inspectors out into low income
neighborhoods where housing supply is more units that violate the code than if you send them to
Kahala, Kapolei. Usually the ethnic composition of those areas are uniform.
Which do you want to emphasize? Send inspectors to Kahala or to areas where housing is
substandard to pt of being dangerous?
What occurs in enforcement?
If the unit is repaired then there will be higher rent. >>more attractive and cost of repairs
If it’s in housing code>>then presumption in there for good safety reasons
If you violate building code, zoning ordinance> claim by tenant that “too dangerous to live in”>> what
does that sound like? Constructive eviction
If you want to claim constructive eviction>> must leave premises. BUT HERE NO NEED LEAVE.
(contradicting-social policy)
Good social policy bc: lower econ status occupy substandard under Housing Code, don’t have to
leave bc too harsh to require leaving. >>you have to pay but not to landlord, goes to make
repairs.
This is a clear limitation on the warranty of habitability. IT first implies a warranty of habitability and it
makes it continuing. The ct implies a warranty of habitability there are exceptions, if it is largely
the tenants fault by and large the landlord is going to be free and clear of any implied warranty of
habitability. You can always provide in the lease.
Standards
o Gets it from the housing code. This is a civil suit. This is an exercise of police
power. Gov enforces all of these codes. Yet we find that housing codes are
brought in and the code provides that there should be certain standards of
housing. What gives them the right not to pay rent? Breach of the implied
warranty of habitability. Code does not do this unless code is the fountain
source of the standard.
o Naturally is that we have a housing code that goes to the question of habitability.
What happens if you.
o You can’t the property owner has a vested right and zoning ordinances are not
changed with respect to what you can do with a housing code?
Can you enforce a housing code violation and it was good before can gov enforce the new
regulations? yEs it goes to habitability. Buidlign codes you need to comply with it when you put
up a building. Need to put up something that will be habitable. Need to put in housing code
something that is enforceable after the fact. The city can enforce anything that it decides is a
danger to the health and safety to people. The housing code is an exception at the time the code
is set up and throughout the lifetime of the unit. You may have gotten the standard at some other
place. The standards are in the housing code, is it safe? Is it habitable? If it is safe there is no
cause of action.

(10)
Walls v. Oxford Management Company
Landlord Responsibility for Crime
Facts: Plaintiff Walls was sexually assaulted on premises of an apartment complex managed by
Defendant. During the two years prior to the assault on Plaintiff there were eleven auto thefts, three
attempted auto thefts, and thirty-one incidents of criminal mischief/ theft. No sexual assaults were
reported. Plaintiff brought an action in federal court alleging that Defendants had a duty to hire competent
management, provide reasonable security, a duty to warn residents of lack of security, and a duty to warn
residents of the numerous criminal activities which had occurred.
Rule:
  General Rule: Landlords have no duty to protect tenants from criminal attack. (a D not held
liable for negligence if he couldn’t rxbly forsee that his conduct would result in an injury or if
his conduct was rxbl in light of what he could anticipate).
 Exceptions:
o (1) arises when a special relationship exits, l/t doesn’t create this
o (2) ** arises where “an especial temptation and opportunity for criminal misconduct
brought about by the D, will call upon him to take precausitons against it.” (allow
homeless to live there-breach of warranty of habitability)
o (3) Existence of overriding foreseeability/clearly foreseeable, even if not causally
related to physical defects on the premises (high-crime area, no notice)
o (4) ** one who assumes a duty then has a duty to act w/rxbl care (removing security
when they used to be there)

Notes:
 her claim: warranty of habitability-not habitable under those circumstnaces, therefore duty on
landlord to make and keep it safe
 can’t stretch that far to be free from crim conduct (not housing code matter, etc)
 But not willing to leave landlord off the hook indefinitely-SEE EXCEPTIONS
(11)
 Statutory Intervention in the Landlord-Tenant Relationship

(12)
Edwards v. Habib
Retaliatory Eviction
Facts: A tenant reported sanitary code violations (40 violations) on leased premises and thereafter the
landlord moved to evict the tenant. Gave Edwards 30-day statutory notice to vacate. Lower cts found for
landlord. Affirmed by COA. Reversed by US COA. Edwards wanted to use defense of retaliatory eviction.
Rule:
A landlord can’t evict in retaliation for tenant’s reporting housing code violations.
That proof of retaliatory motive does constitute a defense to any action for eviction.
Notes:
Court refuses to allow ∆ to evict π b/c it’s bad policy to allow landlords to evict tenants when they
report housing code violations. Clearly frustrate the effectiveness of the housing code as a means
of upgrading the quality of housing in Washington. Enforcement of housing codes depends on
reporting.
Even if the tenant can prove a retaliatory purpose, if the landlord remedies, the landlord can evict his
tenant or raise their rents for economic or other legit reasons, or even for no reason at all.
Remember: Tenant is not entitled to remain on the premises in perpetuity.
Proof of such a retaliatory action can serve as a defense for evictions.
To permit retaliatory evictions would clearly effectuate the effectiveness of housing codes.
NO precedent, NOT in an ordinance, NOT in the lease
THERE ARE NO EXCEPTIONS USUALLY bc: usually people rely on reporting, it will get out of
control if the term of the lease is likely to be short with respect to these units, if everyone is
concerned under summary eviction, then it’s a problem with respect to enforcement
(13)
(14)
Yee v. City of Escondido
Rent Control
Facts: An
ordinance on mobile home parks limited the amount of rent that
could be charged, and owners of parks claim the ordinance is a physical
occupation of their property.
Rule:
When a landlord decides to rent his land to tenants, the government may place regulations on the
rent the landowner can charge without automatically having to pay compensation.
Notes:
The government affects a physical taking only where it requires the landowner to submit to the
physical occupation of his land.The ordinance requires no such thing. Petitioners voluntarily
rented their land to mobile home owners. Neither the city nor the state compelled Petitioners to
continue renting their property to tenants. No government has required any physical invasion of
property. Petitioners’ tenants were invited by them, not forced upon them by the government.The
ordinance here merely regulates Petitioners’ use of their land by regulating the relationship
between landlord and tenant. When a landlord decides to rent his land to tenants, the government
may place ceilings on the rents the landowner can charge, or require the landowner to accept
tenants he does not like, without automatically having to pay compensation.
The argument was that this is not a valid public purpose it does not further or substantially advance a
legit public purpose- why will that argument fail? One of the principle arguments is that if these
regulations stay in place it would be a failure of advance. This would fail because of Lingle after
lingle this argument goes out the window. The folks in CA were enraged. In CA, so lingle wiped
that out. The argument that oridnance would not substantially advance public purpose. There
would be no inexpensive housing.
 To recap there is a claim of a physical taking primarily because it does nto relate to physical
takings cases. Is the court codneming property? They are not. Are they forcing a physical thing
like a cable TV box? No. Physical takings are invasion and condemnation kind. Leaves us with
regulatory taking claim. What does the court do with the regulatory taking? The court says no.
Why? Because it was ot part of the cert petition?
o -Rent regulation vs. Rent control is a better term for laws that limit tenant rents
o -Rent control ordinances allow for periodic increases
o -Adequate maintenance is required as a condition for a rent increase
o -Rent controls may prohibit eviction, and may regulate or restrict the demolition of
rent-controlled units of their conversion to owner-occupied condominiums.
 Intentional or unintentional invasion of prop right-
 The controlled one would sell for more- price of that unit will go up.
 Who owns the reversion? Landlord. Premium is going to the tenant, not me, and that’s a
taking of one of the sticks in my bundle. Happens only bc of your rent control ordinance,
otherwise no premium, or if there were then I could raise rent and make more $
 No relief bc: no physical taking (could have been regulatory taking), no relief on reg
taking>> bc Yees didn’t put it in their cert petition (excuse by S Ct)
 Interesting terms about the purpose: what if the demonstrable >>doesn’t further purpose
of ordinance, all you’ve done is shift the premium from landlord to tenant, the tenant is
selling it at sizable profit thereby taking that affordable unit and making it expensive, you
haven’t fulfilled the legitimate state interest. After Lingle v. Chevron, only 14th
amendment challenge, the CA folks are livid bc one of the main arguments about rent
control, the legit state interest has been violated and the ordinance should fall.

(15)
-What are the ramifications of the public sector interfering w/the private sector when
trying to keep prices down?
 If you artificially create a shortage by driving down the $ of a good that’s already in
low capacity, that good will probably stop being provided/created
(20)Discrimination in Housing
Discrimination in housing is a serious social problem in our society. Integration indices developed over the
years continue to show that many major cities are seriously segregated, and studies by the U.S.
Department of Housing and Urban Development show that discrimination in the sale and rental of housing
is still a serious problem.

 Federal Fair Housing Legislation(Federal Fair Housing Act (Title VII)

  Protected Classes
A. Race, gender/sex, religion, family status, country of origin, occupation
 Section 8 Vouchers
A. LL does not have to accept them but there will be a problem if all of the people
you’re accepting are from a certain discriminated group. Generally no
protection basedo n income but where income discrimination is proxy for race
discrimination there may be a violation. Participation is voluntary.
 Affirmative Marketing
A. Marketing efforts to reach out/encourage to a particular group
 Steering
A. Directing a particular racial group away from a neighborhood and toward
another one.
 Group Homes for Persons with Disabilities
A. Person with mental or physical disability are protected so LL and gov officials
must make reasonable accomodations
1. Protected=group homes for handicaps, alcohlics, mentally disabled
2. Not Protected=group homes for drug addicts
3. Can’t disallow a protected type of group home just to avoid overconcentration of housing
4. In Zoning may be required to make a reasonable exception to accommodate those who
are handicapped so as to not violate the FHA.
2 ways to Violate
 Disparate treatment
o Proof of intent
 Meets objective requirements of LL
 Rent agreement would likely consummated if the tenant had been of the
preferred race
 Disparate Effect
o Overall discriminatory practices result in discriminatory effect
o Don’t have to show intent
o Under equal protection act, you need to show intent.
Inclusive Communities v. Texas Dept. of Com Affairs
Rental Housing
Facts: Hosuing for low income individuals should it constructed in inner city or suburbs.
Rule:
 If you do not get disparate treatment you can get disparate effect.
Notes:
Being poor does not qualify as protected under the Fair Housing Act.
Under the disparate impact analysis, the economic class translates into a protected racial class.
Note how one goes about proving disparate impact. You just need to show that the result violates the
act against a protected class.
The basis is worth knowing. The basis for the attack is the Fair housing attack. So is there anything
on the record that would indicate the Texas was meaning to discriminate against a particular
race? They did not mean to do so. They do not need to show this under the FHA all they need to
do is show disparate impact. Discriminatory intent menas you show animus on part of the
community. US CONS equal protection clause. Turns down request for a housing project. The
USSC which eventually got the case, under the constitution, the FHA plea was dropped out, so all
that was left was the cons claim to not rezone property in the middle of town. SCOTUS says you
must show intent to discriminate the best way to have some kind of smoking gun. You can also
show intent by a pattern of activity that is unusual for a difference in process or an effect
unexplainable on any other grounds except race. You have a claim under the equal protection
clause. Passing that is the FHA. So sicne there was no evidence of discriminatory intent or
animus we are left with discriminatory effect. So now we have an indication of the standard that
we will use under the FHA title 8 in order to show cause of action for discrimination. The basic
test is the disparate impact theory looking at consequences. Look at it and determine whether
 you can apply to instances of discrimination under FHA in order to sow a discriminatory effect or
impact rather than having to show intent.
What do you need to show first? You first need to show a disparate impact on a protected class (race,
color, religion, sex, handicap, familial status or national origin. You need to show that there is a
disparate impact on a protected class. That class is being treated differently than everyone else.
Next, the burden shifts to the D, the D needs to show a legitimate, genuine policies. As times
have changed and we have more and more pacific islanders (limitng number of people) can be
code for familial status. The government can defend or rebut here is what we are meaning to do,
and here is the basis of our policy. If D satisfies burden, shifts back to P needs to prove that
there is a less discriminatory method of achieving the policy goals of the second part.
While disparate impact Kennedy hems around with an awful lot of caveats. You are left with one or
two imrpessions either the court is paranoid over quotas, but also that the statistical category if
the P cant point to policy of exclusion. There needs to be evidence that it is ongoing or more than
one instance. The ct says that statistical disparity is evident. Need to show that impact is
different from the rest of the class. Racial imbalance alone does not establish a prima facie case
of disparate impact. Quite a process to get through.
Now we have this test, what has been happening with respect to this rule. The 9 th circuit in a 3 judge
opinion, attempted to gut or ignore the limitations with respect to the first prong of impact on a
protected class. It was a one off situation. It should have been dismissed on that ground. The
second circuit examined the case law in which prong 2 and 3 were more less unified. In other
words the D would be required not only that there is a legitmate policy, but the local government
must then also without any motion or action by P also discuss reasonable alternatives to make
the same goal. So this was the law, but whereas it is not critical for this court, it is worth noting
that in Febraury 2015, how disparate impact should be administered.
(16)
 Affirmative Marketing and Steering
(17)
South-Suburban Housing Center v. Greater South Suburban Board of Realtors
Affirmative Marketing and Steering
Facts: Affirmative Marketing Case. Trying to stir up white interest in a black neighborhood
Rule:
 Affirmative marketing is ok when it does not prevent a certain group of people
from moving into a neighborhood.
Notes:

(18)
 Group Homes
(19)
Larkin v. State of Michigan Department of Social Services
Group Homes
 Facts: Adult Foster Care. Law wants to prevent the institutionalization of handicapped
individuals. Can’t have adult foster care within 1500 feet of other afc’s. Can’t issue permit if
another state licensed AFC exists within the 1500 foot radius of the proposed location, unless
permitted by local zoning ordinances or if the issuance of the license would substantially
contribute to an excessive concentration of state licensed residential facilities within the city or
village.

Rule:
 It is unlawful to discriminate in the sale or rental or to otherwise make unavailable or deny a
dwelling to any buyer or renter because of a handicap of a person residing in or intending to
reside in that dwelling after it is so sold, rented, or made available.
 Statutes that single out for regulation group homes for the handicapped are facially
discriminatory.
Notes:
 Statutes like this one are facially discriminatory. When they are D has the burden of
demonstrating that the regulations are warranted by the unique and specific needs and abilities of
those handicapped persons to whom regulations apply. The FHAA protects the rigths of
individuals to live in the residence of their choice in the community. If the state were allowed to
impose quotas on the nmber of minorities who could move into a neighborhood in the name of
integration this right would be vitiated. MDSS argues that the state is not imposing a quota
because it is not limitng the number of disabled who can live in the neighborhood. However,
disabled individuals who wish to lvie in a community often have no choice but to live in an AFC
facility. Alternatively if the disabled truly have the right to lvie anywhere they choose, then the
limtiations on AFC facilities do not prevent clustering and ghettoization in any meaningful ways.
So MDSS’s own arg suggests that integration is not the true reason.